Disputed Issues

Three senses of "conversational" writing

2013-05-06T10:49:00.000-07:00

[Builds on What is classic prose?: "Clear and Simple as the Truth” reinterpreted through construal-level theory]

Writing advice confuses when it extols ambiguous virtues such as being “conversational,” a term that might identify a manner of writing by any of three characteristics: stylistic similarity to conversation, stylistic suitability for conversation, and conversational aim. Whether a writer ought to strive for conversationality depends on the term’s intended sense and the writer’s purpose.

1. Similarity to ideal conversation: Ideal conversation is not ideal writing.

Conversation fundamentally differs from writing in its reliance on nonverbal cues. Ideal conversation is more fluent than ideal writing because of conversation’s reliance on the nonverbal: where less needs be explicit, its cognitive load should be smaller. Ideal classic and practical writing will lack the fluency of ideal conversation.

2. Suitability as conversation: Ideal written sentences might be ideal conversation.

Sentences utterly unsuitable for conversation because they can’t be parsed in one hearing do not conform to any established contemporary style. Although most writers should avoid sentences that require rereading due to their structural and semantic complexity, even this advice is conditional. Past styles have been influential where the sentences demand rereading, for example, Samuel Johnson’s (Preface to Shakespeare):

That praises are without reason lavished on the dead, and that the honors due only to excellence are paid to antiquity, is a complaint likely to be always continued by those, who, being able to add nothing to truth, hope for eminence from the heresies of paradox: or those, who, being forced by disappointment upon consolatory expedients, are willing to hope from posterity what the present age refuses, and flatter themselves that the regard which is yet denied by envy, will be at last bestowed by time. (From Thomas and Turner, "Clear and Simple as the Truth" at p. 15.)

3. Conversational aim: Only some writings should have conversational aims.

Writing styles taking a far-mode stance—styles which are “deeply” formal—can nonetheless seem conversational if they deal with opinion rather than belief by working through the intellectual issues and then presenting the results from a detached perspective. This form of conversationality is correctly prized, but it isn’t universally applicable. The practical style, ideal for a brief’s argument section, generally won’t sound conversational, even in this sense, because the legal-practical style typically requires describing the main results found in judicial opinions, not working through intellectual issues.

What is classic prose?: "Clear and Simple as the Truth” reinterpreted through construal-level theory

2013-04-19T18:13:00.001-07:00

The book

Writing is only good or bad relative to the author's tacit stance on deep questions like whether truth is knowable, according to Francis-Noel Thomas and Mark Turner in their contrarian book, Clear and Simple as the Truth: Writing Classic Prose (2nd ed. 2011). While no style is in an absolute sense better than another, they propose to explain and teach the style “classic prose,” which they recommend for its perpetual reinvention as the instrument of choice for broad influence.

Although written mostly in classic style, the book itself is in ways disappointingly unclassic. Rather than creating an elegantly seamless work as the classic style encourages, the book is divided into three unequal parts: the Essay (captivating), the Museum (repetitious), and the Studio (painfully dull; for starter, describe a visual scene orally to a friend).

My reinterpretation

Fortunately, construal-level theory affords insight into the mental states of writer and reader that can bypass the Studio's tedious exercises. From construal-level theory, I’ve adapted the distinction between writing that is self-contained, nuanced, and impartial (far-mode and “deeply formal”) and writing that is context dependent, simplified, and overt (near-mode and “deeply” informal). That distinction pertains to the author’s stance; another distinction pertains to the objective: influential writing might present the author’s independent thinking and seek to change the reader’s opinion or describe his considered belief, dependent on what others opine. Opinion is near-mode and is related to the words agents say to themselves in self-justification; belief is far-mode and is applied more often to others than to oneself.

The relevant styles for legal writing that Thomas and Turner present are those that respect the Writing Virtues, Clarity and Concision. The chart below depicts the relevant styles—plain, practical, and classic—each derived from a combination of the level at which the author construes the message (STANCE) and its aim (TARGET).

The difference between practical style and classic style is that practical style addresses belief and it aims, accordingly, to persuade; whereas the classic style addresses opinion and aims to convince. Thomas and Turner consider the in-house legal memorandum addressed to a superior prototypical practical style, and legal briefs, too, are mainly written in that style. The practical style in legal application doesn’t hesitate to be explicitly argumentative because the legal advocate can’t hide his partiality, as required by the classic style. Yet the more classical a brief can be made, the better; the classic style is the most effective for changing opinion. A brief must address the judge’s beliefs by citing authorities, but it will accomplish the most reliable results by reaching further to the judge’s personal impressions. Often, the facts section can be written in classic style.

Where the practical style and the classic style differ from the plain style is in their self-contained deep formality. This detachment and distance is key to writing intending to be influential—whether convincing or merely persuasive—and the progressively duller second and third parts of the book attempt to teach it by having the reader master and extend the “classic visual scene,” which consists of equal conversationalists viewing the same surroundings with reciprocal knowledge of their common perceptions. The presentation of this scene, without the unarticulated gaps that pervade near-mode communication, amounts to approaching composition in far-mode. The plain style, often purveyed as the model for contemporary writers, imitates near-mode communication and lacks the detached explicitness and nuance of far-mode communication.

My advice

If you can move your legal writing toward classic prose, you will improve it, but classic prose is difficult to produce because it adapts a far-mode stance to the representation of near-mode thought, allowing its dispassionate exploration. This is unnatural to perform because in relating our opinions we naturally assume a rich, shared context. But for influential writing, classic prose ranks highest on the Writing Virtues, as this chart depicts.

The pattern above is that as the style comes to invoke an increasingly far-mode stance the writing becomes less fluent but more cohesive and selectively omissive. Near-mode thought is capable of superior articulation into parts, but far-mode affords the superior sense of a cohesive whole and inattention to the incidental. The plain to classic dimension trades off fluency for cohesion and omission, and for influential writing addressed to serious, interested readers this advances both Writing Virtues.

My conclusion

Some commentators lay great stress on the deceptiveness of the classic style, which conveys false tacit assumptions, such as the flattering appraisal that the reader is truly interested in finding truth. Construal-level theory implies these conventions are idealizations, employed by far-mode to grasp the essential and exclude the distracting. Idealization is emblematic of far-mode cognition. Thomas and Turner contend that all styles have characteristic epistemological stands, but construal-level theory implies that that idealizations aren’t as prominent in near-mode writing styles.

[Developed further in Three senses of "conversational" writing.]

Verbosity affronts the court

2013-03-02T10:29:00.001-08:00

An attorney’s pomposity affronts the court, transgressing a status formality. Since verbosity is a signal for pompous arrogance, it damages attorneys’ credibility—and their cases—more than the profession recognizes.

The social function of pomposity

To identify and understand the phenomenon of pomposity, one must know its social function, which I find no one has addressed. Signaling theory, a hybrid of economics, game theory, and evolutionary psychology, is the analytic tool of choice for discerning what people are really trying to accomplish when they’re pompous. People signal to demonstrate possession of an otherwise invisible high-status trait, using behavior that would be too costly to display if they lacked the trait. A classic example is conspicuous consumption. Owning a huge house confers status because it signals that the owner is rich enough to afford it.

Its link to evolutionary psychology takes signaling beyond Thorstein Veblen’s conspicuous consumption and conspicuous leisure. What makes signals (like owning a big house) effective is not so much their present correlation with status but the correlation in humankind’s evolutionary history. Evolutionary psychology proposes that status is conferred by traits that would make an individual a powerful ally.

Under the signaling framework, pomposity is a costly signal because self-important displays by one unimportant discredits the signaler as a liar. One’s fellows in the primal human environment of bands and tribes could easily discover such exaggeration. Today, the barriers to ascertaining reputation make pomposity both harder to discredit and less convincing. These limitations render pomposity a somewhat desperate gamble by persons who feel undervalued.

Verbosity and pomposity

If the link between pomposity and power is instinctual, so must be the means of expressing pompous arrogance. Verbosity, I contend, signals arrogance because of a deep connection between claims to power and consumption of time and space. The connection can be seen in body language: adolescents wanting to suggest they have the power to resist adult coercion, for example, will assume a posture that occupies as much space as possible, sprawling over their chairs. More controversially, you may also notice that the severely obese are apt to be narcissistic and power-oriented. Analogously, the pompous will consume ten minutes to make a banal ten-second point.

Verbosity, to be sure, isn’t always or even usually caused by pomposity. More often, it’s the result of poor writing skills or lack of grasp of the subject matter, but a strong correlation isn’t necessary when the impressions rest on an instinctual basis.

Succinct writing avoids affront

Adverse repercussions follow for the verbose legal-brief writer. Verbosity is an implied challenge to the court’s status because 1) it signals a claim to power and importance and 2) it does so at the expense of the court’s time. Recall that burdening the court to the attorney’s personal advantage breaches a status formality. The court will perceive verbosity as self-promotion achieved at the court’s expense—in time and, ultimately, in status.

Most criticism of verbosity concerns its shortcomings as communication, but the unconsciously experienced violation of a status formality represents a still greater threat to a brief’s favorable reception.

A comma puzzle: The false-interjection error

2012-12-22T10:41:00.001-08:00

If you enjoy puzzles about the comma—and who doesn’t?—here’s an elegant but very difficult one, courtesy of Daily Writing Tips where Mark Nichol proved it’s difficult indeed by getting it wrong, as did my wife, a short-story author with a postgraduate degree in English. But it’s not impossibly hard, since the first commenter on Mark’s blog got it exactly right. (I’ll delay the link so you can try it.)

In the form I’ll use, the puzzle requires you to choose the two correct versions:

Version 1. Residents decide driving, and shorter trips to places like Canada are safer options.
Version 2. Residents decide driving and shorter trips, to places like Canada, are safer options.
Version 3. Residents decide driving, and shorter trips to places like Canada, are safer options.
Version 4. Residents decide driving and shorter trips to places like Canada are safer options.

My wife chose Version 4 alone.

Mark Nichol chose Version 3 and Version 4.

The correct answer is Version 2 and Version 4 (with Version 2 the more likely intended meaning).

Everyone agrees that Version 4 is correct; the questions are why does Mark erroneously think Version 3 is also correct and why does my wife fail to recognize that Version 2 is correct? Mark’s explanation supports my previous claim that among grammatically literate writers the most important comma errors derive from or at least implicate grammar errors. My grander claim is that comma errors create useless cognitive disfluencies, since they affect the reader’s grammatical parsing. In fields like brief writing, where the highest levels of clarity are advantageous, repeated comma errors—even if they’re subtle or controversial—summate to undermine Clarity.

Mark’s reasoning expresses a more straightforward error in grammatical analysis than the error I analyzed in The fundamental error of comma usage, as Mark claims that the string, and shorter trips to places like Canada, in Version 3, is an interjection, but an interjection (like Oh!) is grammatically isolated from the rest of the sentence. If the string were an interjection, the clause’s verb, are safer options, should be singular rather than plural. Since there’s no way to punctuate the sentence to make the verb singular, the italicized string, which must form part of its clause’s subject, can’t be an interjection.

But Version 2 is the correct answer if you’re allowed only one choice. The difference from Version 4 is that to places like Canada is a restrictive modifier in Version 4 and a descriptive modifier in Version 2, and the descriptive meaning is more probable. Read closely, Version 4 advises shorter Canadian trips, whereas the writer almost surely intended to advise limiting the length not just of trips to Canada (and similar places) but trips in general.

Emphasis by brevity of sentences, paragraphs, and sections

2012-12-05T16:15:00.000-08:00

To emphasize an idea, put it in a short sentence. To emphasize a sentence, put it in a short paragraph. To emphasize a paragraph, put it in a short section. In general,

Readers will give information relative emphasis in inverse proportion to its density.

I haven’t seen this principle articulated, and it only became apparent to me through the lens of construal-level theory; although the tip to use very short sentences for occasional emphasis is a commonplace, to use long sentences for de-emphasis isn’t. That the principle hasn’t been generalized might be because the effect is often subtle: it is only one of at least five means of emphasis, but a more interesting reason that the effect has gone unnoticed will emerge, in that the construal processes explaining emphasis by brevity also explain why writers aren’t apt to notice.

I’ll begin with an example at the sentence level. Compare this very long sentence to the constituent propositions:

With capitalism’s evolution, a decreasing proportion of the value produced is constituted of labor directly employed, an increasing proportion from labor already concretized in capital goods, since mechanization of production is the fundamental means to increasing economic efficiency, where capital goods contribute to the value of a product to the extent they are consumed in its production. (Context: Juridical Coherence.)

The simple ideas the sentence contains, such as that mechanization of production is the fundamental means to increasing economic efficiency, are commonplace ideas others have expounded at length. To subordinate their importance to the ideas I deemed novel, I demoted them by including them in one complex sentence.

Construal-level theory explains why emphasis by brevity works, by the low granularity of far-mode. The theory predicts and experiments find that reading occurs in far-mode, whereas writing occurs in near-mode (I conclude that the latter is lamentable), where far-mode apprehends in global units as we see from afar. In far-mode, each sentence has equal value; the more thoughts occurring in a sentence, the less the relative value of each. The theory also explains why emphasis by relative brevity isn’t common knowledge. Even while writing in far-mode, the writer is nearer his work than the reader because the self-other axis is a major dimension of construal level, and in near-mode, the longer sentence is more important than the shorter, rather than the reverse—near-mode adds when far-mode averages.

The phenomenon of emphasis by brevity confirms some standard writing advice and rebuts other standard advice. Commentators have expressed surprise at the degree to which variation in sentence length improves comprehension, suggesting more is at work than maintaining interest by variety. Varying sentence length makes writing clear by informing the reader how important the writer regards each component idea.

The misguided advice includes limiting sentences to one idea, implying writers should avoid compound sentences (and semicolons). Compound sentences serve to de-emphasize the ideas they contain, so their avoidance sacrifices emphatic contrast. Other misguided advice concerns paragraphs. Consistently short paragraphs have the same leveling effect on importance as consistently short sentences. And routine use of separate paragraphs for transitions between paragraphs is bad practice because the merely transitional usually doesn’t merit emphasis.

For a document’s sections, one all-too-common practice gravely offends against construal-level theory. A conclusion is almost mandatory in legal briefs and is necessarily short, but nonetheless, the emphasis it receives is often bestowed on a platitude with an initial “whereas,” in all caps no less. The better practice is to reserve a memorable idea for the short concluding section.

Emphasis by typography

2012-11-21T14:52:00.000-08:00

Attorneys often use boldface (and italics) to emphasize arguments, an overdone practice if it should be done at all. Yet typographical emphasis seems effective in blog writing. Exploring the reason for the difference might help refine the usage of typographical emphasis in briefs—or preclude it.

Bloggers use typographical emphasis effectively to highlight key claims, but claims are rarely key in a legal brief. Blog writing is an exercise in originality of conception, so it’s incumbent on the blogger to draw attention to those original conclusions, whereas legal briefing should seek to minimize the appearance of being original. What warrants emphasis in briefs is argument, not conclusion. Succinct conclusions are easily emphasized. But every part of an argument is equally important objectively, and which part is most important subjectively depends on the reader, so emphasizing part of an argument typographically creates a sense of non sequitur, since the bolded argument doesn't pull its weight. Various parts of the argument are more important for different readers, the emphasized passage or words miscuing them. Typography is too crude a technique for emphasizing parts of an argument, which must display the precise relationships among its parts in nuanced fashion.

Legal writers usefully emphasize headings typographically, but bolded headings must function as headings if they are to avoid the heavy-handedness of bolding parts of arguments. Rather than state part of the following argument, they should summarize or describe the section of text they govern.

There’s also a more speculative reason why bolding body text might always be a bad idea for legal briefs: it may subtly offend the judge by violating a status formality, an informal rule designed to protect the judge’s status. One of the common demands of rules of status formality in courtrooms is that lawyers must always avoid making their own work easier at the expense of making the judge’s work harder. Since it is actually a bit harder to read boldface than roman text, this status formality might apply, the author having other means of emphasis that don’t burden the judge.

Avoiding irrelevance and dilution: Construal-level theory, the endowment effect, and the art of omission

2012-10-23T12:58:00.001-07:00

Deciding what to omit (omission) is one of three fundamental writing skills—besides fluency and cohesiveness—supporting the two major Writing Virtues: Clarity and Concision. Although omission is a sophisticated skill not acquirable through panaceas, it is unique among the three fundamental skills because a single roadblock causes most of the congestion. The roadblock is the writer’s innate aversion to deletion; the aversion derives from a universal cognitive bias called loss aversion, meaning we’d rather maintain the status quo than bet a significant amount on the flip of a coin. (See D. Kahneman, Thinking, fast and slow (2011).) The most dramatic expression of loss aversion is the endowment effect: owners will sell property only at a much higher price than they would pay to acquire it. Loss aversion explains an impressive part of wordy or irrelevant writing because it makes adding matter easier than deleting it.

Construal-level theory is a theory about decision and judgment that explains loss aversion and teaches us how to avoid it in writing. Construal-level theory deals with the biases the distinction between practice and theory introduces into our thinking. When our objectives are immediate, the information available rich, and time bountiful, we analyze in a way of thinking called near-mode, which uses high-grain, concrete concepts and attends to incidental features. When our objectives are long-term and the information or time scant, we analyze in a way of thinking called far-mode, which uses low-grain, abstract concepts and focuses on the essential.

Construal-level theory furnishes an explanation of loss aversion and the endowment effect. (D. Kahneman, supra.) Consider a standard example of the endowment effect: a holder of concert tickets costing $50, the most the concert-goer would have paid, refuses to sell for $300. More usually, we value property about twice as much just because we happen to own it already. Construal-level theory explains loss aversion by the tendency to give greater importance to the near than the far. Analogously, we over-value what we’ve written because it’s near, and we’re loathe to part with it.

Construal-level theory has unearthed another source of our reluctance to cut inferior matter: the audience reads in far-mode, which is global, but legal writers often compose it in near-mode, which is sequential. The consequence is that the audience averages the quality of the documents’ parts, whereas the writer is apt to add their quality, meaning that, for the audience, subpar arguments detract from overall quality but, to the writer, they may seem to increase the quality. (K. Weaver et al., The presenter's paradox (Oct. 2012) 39 Journal of Consumer Research 445 [Hat Tip: Overcoming Bias].)

Construal-level theory provides insights to help writers overcome the biases implicated in writing in near-mode for an audience reading in far-mode. Writing systems involving different roles for the author, such as the roles of writer and editor, serve to vary the author’s mode. Specifically for brief writing, Bryan Garner has advanced a more elaborate system of roles, which are distinctively near and far. (B. Garner, The winning brief (1999) at p. 3) The chart below displays the Flowers roles, their typical activities, and the mode mainly engaged.

Flowers-paradigm role	Typical activities	Mode from construal-level theory
*Madman*	Brainstorming, “Deep thought,” background research	Far
*Architect*	Outlining, planning, detailed research	Near
*Carpenter*	Primary writing	Far
*Judge*	Editing, proofreading	Near

Madman is far because it encourages intuition, a far-mode product. (See G. Gigerenzer, Gut feelings: The Intelligence of the unconscious (2008).) Architect is near-mode because it accentuates logical relationships, which depend heavily on sequencing, a near-mode activity. Carpenter is far-mode because it attempts to make ideas intelligible to others. Judge is near-mode because it involves close reading for error.

The alternation of phases is powerfully effective in engaging both modes without causing the mutual interference to which they are prone when combined simultaneously. It is so effective that the modes can be seen to alternate within roles. Although Madman is predominantly far-mode, it includes periods of near-mode activity, such as close reading of selected cases. Judge, although mostly near-mode, may include far-mode phases, such as hearing the document read aloud. Carpenter and Architect usually alternate more than once, because Carpenter excels at abstraction and Architect at sequencing.

Construal-level theory offers far-mode as the remedy for excess. Because of the relationship between the endowment effect and near-mode, cutting excess is performed most effectively in far-mode, and typical problems in legal writing occur when lawyers compose their briefs in near-mode, often because they write their briefs while they read cases closely. The result is not only the absence of the big picture but also an accumulation of excess. To avoid much of this excess, learn to write in far-mode, and master the research in near-mode in the Architect phase.

Some common advice is misguided because it contributes to excess. Writers are often instructed to be Madmen in the Carpenter role, but although both Madman and Carpenter are far-mode, Carpenter provides the opportunity to pare down irrelevant matter generated in the Madman phase, and the advice to suspend the critic when doing primary writing sacrifices the main opportunity to trim excess. This shouldn’t be left to the Judge, as editing is a near-mode activity, and among the errors the Judge isn’t good at correcting is excess. The erroneous advice comes from seeing an alternation between writer and critic rather than between near-mode and far-mode.

Both far-mode phases are good for trimming excess, as the writer can take steps to stem excess in the Madman role despite heeding the advice to suspend the critic. Although this advice applies to Madman, not to Carpenter, when applied to Madman it admits critical comments. To take advantage of the Madman to combat excess, treat critical ideas related to scope and breadth just as you would any other ideas. If you’re brainstorming, if you think you’ve come up with an idea of doubtful relevance, you should note that thought alongside the idea itself. Having added exclusion as an idea, you will later be unable to avoid discarding one idea or the other, the marginal thought itself and the imperative to disregard it. Therefore, near-mode’s reluctance to part with sentences will resist rejecting the idea to discard as much as it resists rejecting the idea itself.

Uncomfortable ideas and disfluent expression affect us similarly

2012-10-01T17:41:00.001-07:00

Cognitive fluency

Integrating the research on cognitive fluency and cognitive dissonance can enrich our understanding of the cognitive strain (or excessive disfluency) produced by convoluted expression. I’ve extensively discussed research on cognitive fluency-disfluency, whose basic lesson is that when a message is understood effortlessly it is more believable. Daniel Kahneman in his landmark work in cognitive psychology, Thinking, Fast and Slow (2011) at pp. 62 – 64, provides the following advice on minimizing cognitive strain in persuasive writing:

Maximize legibility.

Do not use complex language when simpler language will do.

Make the message memorable.

Choose sources with names that are easy to pronounce.

Cognitive dissonance

The term now part of the vernacular, cognitive dissonance, a social-psychology research program started by Leon Festinger in 1956, refers to our aversion to disharmonious ideas, but there’s unfortunately no quick way to understand what disharmonizes ideas. You have to grasp the concept from key experiments. I present two, displaying the breadth of the cognitive-dissonance concept:

In the “$1 and $20 experiment,” subjects performed a boring task, which they understood as the experiment’s real purpose, and they then sought to persuade another subject to participate on the ground that the experience was interesting. One group was offered $1 and the other $20 for their persuasive efforts (today’s values would be inflated by a factor of 7.5). Both groups subsequently evaluated the boring task’s enjoyability. The then-surprising result, as Festinger predicted, was that the subjects receiving $1 rated the boring task more interesting than did the subjects receiving $20. The counter-intuitiveness of the results is what made cognitive dissonance the most popular research program in social psychology in the 1960s: under the reigning reinforcement theory, the subjects in the $20 condition should have rated the task more interesting, since they were reinforced (rewarded) more for claiming it was interesting. Festinger had predicted the results by reasoning that the subjects in the $1 condition would experience more cognitive dissonance due to the disharmoniousness between the two beliefs: 1) they had misrepresented a boring task and 2) they had done it for a mere dollar.

In another study, Festinger observed a group of fanatics who believed the end of the world was nigh and sought to prepare for it. When the world didn’t end, rather than relinquish their belief, they elaborated and deepened it by explaining away the disconfirmation and becoming yet more fanatical. To make their beliefs more harmonious, they construed the apparent disconfirmation as confirmation.

While my concern is to apply cognitive-dissonance research to cognitive strain, which is directly relevant to writing persuasively, cognitive fluency also clarifies cognitive dissonance, needing clarification because defining the harmoniousness that reduces dissonance is elusive. Social psychologist Eliot Aronson had proposed that cognitive dissonance comes from conflicts with self-concept, but recent research hasn’t supported this interpretation: choices affect beliefs even when the earlier beliefs are forgotten. (See Coppin et. al, I'm No Longer Torn after Choice: How Explicit Choices Implicitly Shape Preferences for Odors (2010) Psychological Science 21(4) 489 ‒ 493.) Cognitive-fluency theory suggests that disharmonious (dissonant) beliefs are beliefs whose understanding takes effort. They are disfluent beliefs, although the disfluency arises not from the manner of expression, as in cognitive-fluency research, but from the content of the beliefs.

Just as cognitive disfluency is useful in persuasion, so is cognitive dissonance, although the uses of dissonance, like those of disfluency, have been largely overlooked. To discourage the error of ignoring dissonance’s uses, I’ll offer a few obvious examples supporting the position that just as there’s an optimal level of fluency, so there’s an optimal level of dissonance needed to maintain a reader’s interest. It’s well known that skilled readers of fiction prefer complex to simple characters; paradox can be useful in exposition; and implausible beliefs and even logical contradiction have helped make religions popular—as with the Trinity doctrine.

Lessons for persuasive writing

Now for what cognitive dissonance research implies about cognitive fluency. The research on cognitive dissonance conceives it as a drive to reduce an unpleasant arousal state: we’re motivated to reduce dissonance. (Kiesler and Pallak, Arousal properties of dissonance manipulations (1976) Psychological Bulletin, 83(6), 1014 ‒ 1025.) Cognitive-fluency researchers haven’t considered the motivation behind the preference for cognitive ease, but if cognitive-dissonance reduction is due to the motive that also enhances the believability of fluent messages, that has lessons for writers. The difference is that cognitive strain's unpleasantness motivates the reader to reject the disfluent expression, not only to find the fluent more credible. The analogy to cognitive dissonance suggests that when we disbelieve the disfluent, it’s because believing the disfluent is uncomfortable. Since we must believe to understand, unpleasant affect associated with the effort to understand prejudices the reader against the proposition itself even when it’s later expressed clearly.

The implication is that persuasive writers should avoid unwarranted disfluencies even when they're immediately clarified. If a concept is hard to understand without examples, prematurely presented conceptualizations undermine subsequent understanding. It's better to introduce the examples before the proposition they support.

Cognitive strain's unpleasantness supports using the method of successive approximations for introducing complex ideas. To use successive approximation, the writer presents a simplified concept that is subsequently elaborated in a series of changes, each simple enough to avoid cognitive strain.

You, too, have an optimal sentence length

2012-07-16T16:18:00.000-07:00

Plain-writing proponents advise you to check your documents’ average sentence lengths to guarantee against excess: Bryan Garner recommends an average of 20 words per sentence, and some plain writers recommend 15. Since every writer has an optimal average sentence length, the better advice is to use your own optimum rather than an arbitrary standard. I find, in fact, that when the average sentence length departs from my average, the document needs more work. Nobody has previously explained why writers consistently prefer a certain average sentence length, but inasmuch as “writer’s voice” is mostly sentence length, an explanation could help writers find their “true voice.”

I assume excellent writers prefer their strengths to their weaknesses, and I hypothesize that optimal sentence length is a trade-off between two abilities integral to writing: abstraction and sequencing. Typically, we construct sentences by abstraction and paragraphs by sequencing. Constructing a coherent sentence requires abstracting a suitably deep idea, but linking sentences to form cohesive paragraphs requires attending to their sequential relations. Long sentences capitalize on the writer’s ability to entertain a complex abstraction to be stated in words. Short sentences capitalize on the writer’s ability to link ideas in successive sentences. To make the most of their ability to entertain complex abstractions, writers strong on abstraction compared to sequencing will write long sentences, and to make the most of their ability to sequence thought, writers strong on sequencing compared to abstraction will write short sentences.

The distinction between abstraction and sequencing sounds somewhat like right and left hemisphere, but it isn’t. Here, we’re not talking about whether the internal processing is simultaneous or serial but whether the output is a unified abstraction or a sequence. The dimension of relative strength in abstraction compared to sequencing most resembles construal level: abstraction being far (resulting from abstract construal) and sequencing near (resulting from concrete construal). Personal consistencies in tendency to think far or near are shown, as in the finding that people who wake up late and prefer to work at night (“night owls”) tend to think far.

One educator’s questionnaire estimates your position on what amounts to far versus near thinking, conceived as Global-versus-Sequential learning style. (Hat tip: Words, Ideas, and Things.) I’d be interested in anyone’s results measuring their sentence lengths and testing their Global-Sequential position. My average sentence length is 25 and Global-Sequential learning-style score is 7 (moderately high Global).

If you apply this test, bear in mind these caveats:

1. Short documents will diverge from your average due to random statistical fluctuation.

2. Some documents should diverge from your optimum when the need to write in a particular voice outweighs achieving your highest literary quality.

3. Any document will not only be more interesting but also clearer if you vary the sentences' length.

Emphasis: Prosody or Grammar

2012-06-30T16:15:00.000-07:00

Various devices can impart emphasis:

1. Emphatic and de-emphatic language
2. Specialized punctuation (dash and colon)
3. Short-sentence exceptions
4. Typography
5. End (stress) position in sentence
6. Hierarchic grammatical relationship (supposedly)

Numbers 5 and 6 are this entry’s concern.

The end position in a sentence was dubbed the stress position by Joseph M. Williams, according to whom the two most important parts of a sentence are its beginning, where the reader expects the sentence’s topic grounded in old information, and its end, where the reader expects new information. Written language’s acknowledgement of the orally emphatic end position is a concession to prosody; sentence position rather than grammatical relationships determine written as well as spoken emphasis. Although grammar trumps prosody on punctuation, prosody trumps grammar on emphasis.

Joseph M. Williams best explains the connection between sentence position and emphasis, but he isn’t alone in concluding that the end position is emphatic. Citing six supporting authorities, Bryan Garner counsels, “To write forcefully, end your sentences with a punch.” (The Winning Brief, 36.)

To Garner I turn now for the view that subordination connotes de-emphasis. Garner replaces the meaningless demand to limit every sentence to a single idea with the formalistic one to limit them to a single main idea, which Garner equates with the sentence’s main clause—where Garner advocates putting important information. For Garner, subordination is de-emphasis:

As Trimble suggests, convert a “starveling”—a short sentence that says little—into a subordinate clause and merge it with another sentence. (The Winning Brief, 40.)

Elsewhere, Garner derogates subordinate clauses when he advises giving them separate sentences if they state important arguments.

One reason to question that grammatical relationship imparts emphasis is that its doing so conflicts with number 5, using the end position for emphasis, since that's where (supposedly de-emphasized) subordinate clauses usually occur. Garner’s four examples of combining sentences by subordination avoid the conflict by moving the subordinate clause to the beginning. But this surprising word order shouldn’t be routine.

Putting the main clause in the stress position, as in Garner’s rewrites, comports with Garner’s teaching that the main clause should contain information more important than the subordinate clause contains. But the following example shows that the subordinate clause can rightly be more informative, while Garner’s analysis, equating “subordinate” with “less important,” leads to putting it not in the most forceful position at the sentence’s end. Garner’s rewrites reveal the problem with Garner’s approach: a subordinate clause may properly contain a sentence’s most important information, and then it usually belongs at the sentence’s end. Consider one of Garner’s rewrites:

The original. Third, there are no extraordinary circumstances to support setting aside the court’s judgment. Consequently, there is no basis either to reconsider the Court’s decision or to grant Reynolds leave to amend his complaint.

Garner’s rewrite. Third, in the absence of extraordinary circumstances, the Court should not reconsider its decision or grant Reynolds leave to amend his complaint.

Garner misplaces the emphasis. Instead, stress-locate the subordinate structure:

My rewrite. Third, the Court should not reconsider its decision or grant Reynolds leave to amend his complaint in the absence of extraordinary circumstances.

Despite its subordinate grammatical status, “in the absence of extraordinary circumstances” receives the greatest emphasis. This seems right, since it’s a trivial move from no extraordinary circumstances to the lack of basis to reconsider.

Garner’s approach reveals the harm of equating subordination with lesser importance. If, like Garner, you also recognize that the final element is stressed, you’ll be reluctant to put subordinate elements at the end of sentences, with two adverse consequences: 1) you’ll overutilize a sentence pattern that doesn’t start with the subject, and 2) you’ll underutilize the stress position.

The language has good reason to accord emphasis to the stress position rather than to main clauses; grammatical hierarchy has another function, that of expressing factual and logical dependence. In the example above, “No exceptional circumstances” presents as a condition limiting a legal rule, and the rule belongs in the main clause because it's logically fundamental. But the condition, “no extraordinary circumstances,” is the argument’s real point, and it belongs in the stress position, despite being grammatically subordinate.

The Last Word on Procrastination: An integration of ego-depletion theory, construal-level theory, and the irreversibility of writing

2012-06-20T20:13:00.001-07:00

Theories

With the elements I’ve previously introduced—Baumeister and Muraven’s ego-depletion theory, Trope and Liberman’s construal-level theory, and my irreversibility-of-writing theory—we can discern the outline of a general explanation of why we often procrastinate. Both ego-depletion theory and construal-level theory have been separately applied to procrastination, but my explanation combines the theories, which I’ll summarize here only insofar as they directly apply.

Ego-depletion theory says that we have a physically limited daily supply of willpower for implementing our decisions, but we perform habitual acts effortlessly. Researchers in ego-depletion theory advise that we should strategize to utilize our limited supply of willpower efficiently by devoting our efforts to forming productive habits.

Construal-level theory says that we can conceptualize tasks at concrete or abstract granularities. Abstract construals induce future orientation, and they create and inform our goals and plans, disposing us to seek and implement them later.

Irreversibility-of-writing theory says that writers’ block may arise from unconsciously apprehending that you’re unprepared to write.

Theories combined

Explaining procrastination requires understanding how construal level interacts with the allocation of finite willpower, but these are separate research programs, yet unintegrated. Despite the lack of direct experimental evidence, common observation and inference from other research suggest linkages:

Concrete construals allocate willpower. We expend willpower—whether to accomplish specific tasks or form habits—through concrete construals.
Abstract construals foreshadow habits. Formed through abstract construal, goals—varying in strength—cause our concrete construals, long-term.

The more controversial contention is that goal setting through abstract construals drives concrete construals and the resulting productive effort, a contention conflicting with the common recommendation to self-impose the use of concrete construals: focus on the details and the next action. The recommendation is issue begging, since the whole problem in procrastination is that we resist entertaining concrete construals when we engage in pleasurable mental acts of abstract construal.

Abstract construal gets a bad rap in this commentary; to its derogation, one prolific commentator explains abstract construal as having evolved for the hypocritical manipulation of social signals, but there’s evidence that our abstract construals direct our future concrete construals: childhood ambitions foreshadow adult achievements.

Implications

To minimize procrastination, you must form the right kind of strongly motivating goals. The right kind of goals for forming habits demand immediate action, as do goals constituted by habits, necessarily weakened by delay. If you want to write a book, a more effective goal than completion or publication is becoming a hard-working writer. Since the goal entails altering your personal traits, virtue ethics is a useful framework for forming productive habits, since it fosters the abstract construal of habits as goals.

Goals coherently expressing your true purposes are strongly motivating, and for the most part, goals arise naturally from self-knowledge. Powerful goals rooted in deep self-knowledge engender strong habits, but they should do so only to the extent that regimentation is help more than hindrance. The point of my irreversibility-of-writing approach is that writers should limit their self-regimentation. But when habits are few, last-minute production is the well-practiced fallback habit. You must balance regimentation’s efficiency against lost opportunities for “deep thought.”

Euphony and etymology

2012-05-27T16:53:00.001-07:00

Roy Peter Clark proposes that writers can improve on Euphony by mixing hard Anglo-Saxon sounds with soft French-derived sounds. (Hat tip: Ray Ward.) Is this advice applicable to legal writing?

The short answer is probably “no,” but absence of an example hinders evaluating Clark’s proposal, as his evidence consists of poems Clark deems effective due to the poet’s word choice from one or the other etymology: Clark doesn’t demonstrate the effectiveness of combining etymologies. Readers might allow the possibility that both pure and mixed etymologies can promote various purposes, but Clark doesn’t give any examples of the combinatory technique he espouses.

In legal writing and most nonfiction, Clarity and Concision usually outweigh any Euphoniousness that mixing etymologies creates. Alternative expressions may relevantly differ in meaning, which should lead the writer to choose the precise meaning intended. More often, the semantic difference is irrelevant, and the shorter string is better because succinct expressions are easier to entertain.

Clark’s advice can be deleterious by bolstering a writer’s temptation to use the more verbose form, and the lure of informality often tempts today’s writers to verbosity. The longer forms sound natural by resembling speech, and a long tradition of oral culture beckons the writer to sound like a talker. “Plain-talk writing” can be a quick route to popularity but obstructs intellectual influence. Plain-talk’s intimations of chumminess help blog writers assemble a fan club, but verbosity detracts from intellectual compellingness by impairing the text’s cohesion and obscuring its implications.

The profession's disdain for "fine writing": The sociology

2012-05-13T20:53:00.000-07:00

More than two centuries ago, bench and bar were already contemptuous of “fine writing.” When James Boswell filed a brief—particularly well written because Samuel Johnson assisted—the judge advised Boswell that excellent writing was wasted effort. The profession’s literary philistinism has been ignored by commentators on the sorry state of legal writing; only a judge as outspoken as Richard A. Posner is prepared to describe the profession’s attitude:

Many judges and lawyers are disdainful of fine writing. They think it unprofessional, "literary," affected, overrefined. (R.A. Posner, Judges' writing styles (And do they matter?) (1995) 62 U. Chi. L. Rev. 1421.)

Previously, I’ve invoked the distinct talents of talkers to explain the dearth of writers in a talking profession. The distinction reaches still deeper. Lawyers aspire to and admire oral eloquence, yet the most that’s usually hoped for legal writing is that it be plain. Also, while lawyers value eloquence in addressing juries, eloquence is rarely encountered in oral argument. Although more competent in speech—even before judges—than in writing, lawyers don’t diligently rehearse oral arguments to courts as they do statements to juries.

The vast difference in expectations under law and in legal culture between judge and jury explains the different assumptions about the importance of stylistic persuasiveness. The difference is expressed legally in the presumption that the judge isn’t influenced by prejudicial information, a presumption necessitated by judges’ gateway function but a presumption that appears increasingly distant from reality.

In the popular imagination and even in the beliefs of many trial attorneys, the judge is a mere umpire—so the attorney needs only state the facts and cite the law. Any surplus persuasiveness is illegitimate—it shouldn’t work and is presumed and assumed not to work. The penchant of popular consciousness and even jurisprudence to deny the power of judges also causes lawyers and courts to deny the power of style; for if style is persuasive, judges’ decisions manifest discretion—which, of course, they often do.

The obscurity, prolixity, and cacophony of legalese ruin it for persuasion. In a sociological sense, this is the very point of legalese: it prevents one side from gaining an unfair advantage through rhetoric. Rhetoric is part of the persuasion process, and the myth of the powerless judiciary tacitly denies there’s any proper persuasive work to be done when lawyers argue the law to judges. In a perverse sense, legalese is democratic: it levels the field between represented parties who use it.

This part of the explanation of legalese—it may not be the most important part—is both encouraging and discouraging for legal writers. We may be discouraged that the profession devalues our craft. Fortunately, judges aren’t experts on what really persuades them: Boswell should have disregarded his judge’s advice. Among other biases, the judges themselves are prone to uphold the myth of the powerless judiciary. What can encourage some legal-brief writers is that the profession’s disdain for fine writing means excellent writing will be rare, hence exceptionally persuasive, when it competes against the standard legal fare.

The dialectic of clarity: Cognitive fluency vies with cohesion

2012-04-28T19:56:00.000-07:00

Joseph M. Williams, my favorite writing authority, advises:

Some argue that the harder we have to work to understand what we read, the more deeply we think and the better we understand. Everyone should be happy to know that no evidence supports so foolish a claim, and substantial evidence contradicts it. (Williams, "Style: Lessons in Clarity and Grace" (9th ed. 2006) p. 221.) [HT: Vlastimil Vohánka, Comment to Cognitive Fluency: Simpler Isn’t Always Better.]

Williams’s summation is outdated after researchers reported that difficult texts promote better learning. (See Diemand-Yauman, C., et al., "Fortune favors the bold (and the italicized): Effects of disﬂuency on educational outcomes." (2010) Cognition.) Williams errs because he confuses Clarity, which measures the likelihood that the message succeeds, with fluency, which measures the effort the reader must expend to receive the message.

Social-psychological research points to two reasons for the divergence between Clarity and cognitive fluency (also called simplicity or cognitive ease). First, some matters are more intelligible and some beliefs more malleable when they engage an abstract (or “far”) construal level rather than a concrete (or “near”) construal level. Then, disfluent items will be more comprehensible. (“Construal-level theory: Matching linguistic register to the case's granularity,” in this blog, and “A taxonomy of political ideologies based on construal-level theory,” in Juridical Coherence, discuss construal-level theory.)

Second and more important practically, a trade-off between fluency and cohesion should discourage writers from always opting for the most fluent sentences, which must be bought at the expense of cohesion. The second reason explains disfluent clarity in legal writing better than the first because the writer should approach messages calling for abstract construal amelioratively, by imposing greater cohesion or greater Concision to complexify the text.

Joseph M. Williams himself best pinpoints the tension between fluency and cohesion.

The problem—and the challenge—of English prose is that, with every sentence we write, we have to strike the best compromise between the principles of local clarity and directness and the principles of cohesion that fuse separate sentences [ideas] into a whole discourse. But in that compromise, we must give priority to those features of style that make our discourse seem cohesive, those features that help the reader organize separate sentences [ideas] into a single, unified whole. (Williams, Style: Towards Clarity and Grace (1995) p. 48 [emphasis added].)

My change—“ideas” for “sentences”—emphasizes that consolidating the information contained in several sentences into a single sentence can contribute to cohesion.

The diagram below depicts the interactions leading from their causes to the two substantive Writing Virtues. (I save for another day the interaction between cohesion and omission, causing Concision).

Open in separate window

The diagram shows writers must balance fluency and cohesion for Clarity; omission and cohesion for Concision. The centrality of cohesion, which contributes to both Clarity and Concision, helps explain why Williams is correct to stress cohesion over fluency (“local clarity”).

Confusion of fluency with Clarity—or at least, emphasis of fluency over cohesion—is the main technical deficiency promoted by the “plain writing” school.

“For Who [sic] the Bell Tolls”: Who-Whom and the native-speaker dogma in descriptivist linguistics

2012-04-15T14:27:00.010-07:00

Usage of "whom" instead of "who" for grammatical objects is declining in written communication and has almost vanished from oral communication. Should writers continue using "whom"?

The Writing Virtues framework provides standards for assessing this disputed issue, which concerns Clarity. Warranting use until it has become so rare its presence distracts, each semantic and syntactic distinction the language affords can help readers grasp the writer’s intention precisely and quickly. Sentences with whom for grammatical objects are more cognitively fluent than sentences with whom replaced by who: the distinction informs the reader earlier of the word’s grammatical role. Whom isn’t distracting in legal writing, and unless the m receives butler-like stress, it’s not distracting even in ordinary talk. Writers cripple themselves when they abandon a distinction that’s neither redundant nor distracting.

The dispute on the fate of whom and the best practices concerning its use arose when Twitter announced a feature called “Who to follow." Not being a reader or writer of Tweets, I abstain on whether Twitter ought call it “Whom to follow,” but I contest some of the claims made by descriptivist linguists, who would prematurely erase whom from the lexicon. The key issue in this debate should be Clarity, but neither side realized it; none related usage to the cognitive-fluency research, which demonstrates that modest changes in reading ease produce dramatic effects on retention and persuasiveness.

Besides possible ignorance about the cognitive-fluency research, whom’s antagonists seem biased against whom due to how they classify it. They treat the who-whom rule as what I call a hyper-grammatical rule; in fact, they’ve applied the term. But hyper-grammatical rules—such as the rules not to start a sentence with a conjunction or end one with a preposition—are Formalities, whose occasionally necessary observance muddies the message, whereas whom clarifies it by marking a syntactic distinction.

Their discussion of this point reveals a certain dogma among descriptivist linguists. Because whom is used rarely in speech, writers must sometimes expend a moment thinking about which form to use; but the descriptivists claim that native speakers intuitively know their language’s grammar. This descriptivist contention is unpersuasive because many grammatical distinctions sometimes require a moment’s thought. The similar distinction between I and me fails to be entirely intuitive, although—unlike who-whom—it’s still common in talk. And a verb’s number can be unintuitive, so writers may err on subject-verb agreement.

Descriptivists commonly offer a compromise: only use whom after a preposition. The compromise illustrates the neglect of Clarity: when used after a preposition, the whom form informs less than it does when the preposition ends the sentence. If the main complaint about whom is that it makes writers self-conscious, then the best solution for writers could be always using whom in the conventional manner, as inconsistency induces hesitation. Writers of German or other highly inflected languages don’t hesitate in speaking their language’s pronoun forms.

The unity of comprehension and belief and the common failure to grasp opposing arguments

2012-03-24T15:14:00.017-07:00

Legal briefs should rebut opposing arguments, but often trial attorneys handle opposition by reiterating or at best buttressing their affirmative cases. Since the skills for arguing and rebutting are probably identical—as shown by the interchangeability of attorneys experienced in suing or defending—weak rebuttals aren't due to unbalanced skills. The formulaic character of nominal rebuttals suggests attorneys don't fully understand their opponents' legal arguments. An illuminating explanation comes from the psychologist Daniel T. Gilbert's research on the unity of comprehension and belief, according to which understanding a text or utterance requires, minimally, its momentary acceptance as true.

Comprehension induces belief

Gilbert and his colleagues have corroborated a theory of what I call the unity of comprehension and belief :

To understand any message, the recipient must suspend disbelief and accept the message as true.
Unless the recipient rejects the message—by a subsequent conscious or unconscious decision—the recipient will continue believing.

These are momentous conclusions: psychologists had agreed with common sense, which says we can neutrally evaluate a contention and delay accepting or rejecting it. Gilbert's evidence comes from scientific experiments, but one rationale from evolutionary psychology helps clarify why it should be so: conceptual belief is an extension of perceptual belief, and we consider our perceptions true until we have reasons to doubt them.

False confidence impresses juries

Another theory from evolutionary psychology is needed to understand the importance of the unity of comprehension and belief for appellate and motion practice: the theory of self-deception, which the evolutionary biologist Robert Trivers sets out in his new book, The folly of fools: The logic of deceit and self-deception in human life (2011). People aren't objective about their own prospects; clients, for example, have excessively optimistic anticipations about the results of litigation. According to Trivers and evolutionary psychologists, humans evolved self-deception because it facilitated deceiving others, as in a bargaining process in which parties can bluff more effectively if they fool themselves too; the bluffing party "honestly" overvalues its claim.

Trial attorneys confident of the righteousness of their clients' causes are often more persuasive with juries, and true to theory, they often manifest a biased confidence in the cases they are prosecuting or defending. Regardless of whether they realize it, they commit to maintaining their confidence. Attorneys may think their confidence isn't threatened by strong arguments from opponents because, on the common-sense view—rejecting the unity of comprehension and belief—they needn't evaluate the argument, only find the best answer. Didn't law school teach them how to argue both sides of a question? But the unity of comprehension and belief bars the attorney from emerging unscathed from genuine argumentative engagement, and at some level, trial attorneys learn this. To understand the argument, they must believe the argument, at least temporarily, but once they believe, they're at risk for being unable to disbelieve it later. We aren't free to believe what we want, except by refusing to comprehend what we reject. People generally fail to understand attacks on their core beliefs, and attorneys are unlikely to understand arguments undermining their confidence.

False confidence creates ostriches

A publicized case of incompetent lawyering illustrates by providing a good example of a trial attorney’s incomprehension: the appellant’s reply brief failed to rebut dispositive case authority, and the appellant's attorney attained notoriety after Judge Richard A. Posner's opinion represented him pictorially as an ostrich. Judge Posner speculated that the attorney was forum shopping by avoiding mention of a panel he sought to avoid, an unlikely explanation, since the 7th Circuit has long had a bullet-proof system of random case assignment. Judge Posner might have unwittingly achieved his second purpose—besides denouncing the attorney's omission to warn other attorneys—pitching the efficiency of visual matter in briefs and opinions. The ostrich picture was a more plausible depiction than the verbal speculation, in that appellant’s attorney truly didn't believe the omitted case was relevant.

The attorney that Judge Posner ridiculed had served as trial attorney below. What saves legal disputation is that the advantages of self-deception pertain to oral communication, where observers, such as jurors, can detect the involuntary cues—facial, tonal, and postural—betraying the dissimulator. The importance of thoroughly comprehending an argument to refute it argues for a division of labor between talkers and writers.

Construal-level theory: Matching linguistic register to the case's granularity

2012-02-26T01:14:00.052-08:00

“Brutus stabs Caesar,” wrote Shakespeare, but it would have been as accurate, if less apt, to say Brutus murders Caesar, kills Caesar, or attacks Caesar. Those descriptions are more abstract, global, high-level, general, or far. Alternately, Shakespeare could have described Brutus as plunging a dagger deep into Caesar’s chest. That description, compared to the original, is concrete, local, low-level, specific, or near. These distinctions correspond to low versus high granularity of the information they convey, and construal-level theory from social psychology finds the bearers of different mindsets—each receptive to information elicited in one or the other mode, denominated far and near—are prone to continued use of the same mindset in approaching new information. While Shakespeare could have described the stabbing at different granularities, they convey different information and focus on different features of the information.

Similarly, different legal cases or legal issues naturally present as relatively far or near. If Julius Caesar were a murder case, a defense attorney mounting an insanity defense for Brutus would rely on the far mode because the focus would be on abstractions regarding intent and knowledge, whereas a prosecutor would benefit more if the case elicits the near mode to focus on the brutal details. By varying the level of deep formality, as described in the theory of two Belgian linguists, the brief writer can dispose a judge to use the far mode or the near mode because formal is far and informal is near.

Construal-level theory: Thinking far or near

First, the basics of construal-level theory. (See Trope and Liberman, Construal-Level Theory of Psychological Distance (2010) 117 Psychological Review 440.) When you look at an object in the distance and look at the same object nearby, you focus on different features. Distal information is high-level, global, central, and unchanging, whereas local information is low-level, detailed, incidental, and changing. Construal-level theorists term distal information far and local information near, and they extend these categories broadly to embrace psychological distance. Dimensions other than physical distance can be conceived as psychological distance by analogy, and these other dimensions invoke mindsets similar to those physical distance invokes.

Among the dimensions expressing psychological distance are distance in time (from the present), social distance, and logical distance (hypotheticality). High-level information, in general, invokes the far mode: theories, general trends, desirability (rather than feasibility), the future, and pros (versus cons). Low-level information invokes the near mode: irregular developments, special task and situational characteristics, feasibility, and cons.

This description of construal-level theory is abstract (far), but now, by applying it to brief writing, I’ll bring it nearer. The key to this application is that the main dimension differentiating writing styles, degree of formality, influences the reader’s construal level: informal is near and formal is far. Formality will get further sustained attention in this entry, but for now, it’s enough to apply the maxim from the formality series: to write informally, imitate speech. Writing invokes the far mode because, unlike speech, it is typically used to communicate over distances of space and time. Construal-level theory predicts that informality, on the other hand, elicits a near, low-level information mindset. By eliciting the near mode, somewhat informal writing will render the court more receptive to information that elicits the near mode, with its concrete style, focusing on low-level information. The chart below depicts the association between types of argument and optimal construal level.

Arguments pro are far and arguments con are near, so the level of formality should be lower in a respondent’s brief than in petitioner’s brief and lower in an opposition than a motion or a reply brief. Pro arguments are far because change—due to both its future orientation and hypotheticality—is more psychologically distant than the status quo.

The best level of formality also depends on whether you are arguing based on the law or the facts, the law being far and the facts near. Facts are local, contingent, and changing, like an object shifting when viewed from nearby, whereas the law is global, of the essence, and mostly unchanging.

If your arguments are based on law, a further distinction applies: black-letter law is near and public policy is far. The meaning of black-letter law is usually apparent from a textual analysis, a detail-oriented analysis compared with the vaguer, abstract considerations in assessing public policy.

Deep formality and informality: Writing far or near

A theory of deep and surface formality from linguistics defines the tactic of adjusting style to case granularity. (See F. Heylighten & Jean-Marc Dewaele Formality of Language: definition, measurement and behavioral determinants (1999).) Formality here doesn’t mean using legalese, and informality doesn’t mean writing colloquially. This is important to note because most of the discussion of formality by commentators on legal writing, including that contained in Disputed Issues, concerns surface formality, but to vary the construal level of a brief, writers should change its deep formality. Surface formality uses outmoded forms for the sake of convention and is the relevant topic for discussing the formalities, rules that protect the judge’s sense of social status or distance. The main thesis of these linguists’ theory of deep and surface formality is that deep formality centers on avoiding ambiguity by minimizing context-dependence. Communication is formal in this deep sense when it is explicit and definite, rather than understood tacitly.

This further clarifies why degree of formality influences the reader’s construal level. Informal writing is similar to oral communication in its dependence on a shared context, including contemporaneous observations and common memories, which informal communicators use to disambiguate expressions.

A chart in the formality series partitions the formal register into four practices: indirect personal reference, hyper-grammatical rules, succinctness over naturalness, and expressive universality. A pattern was apparent but remained unexplained: some kinds of formality help the brief writer achieve clarity and concision, but other kinds of formality defeat writers’ purposes.

The linguists’ theory of deep and surface formality explains the pattern. Indirect personal reference and hypergrammatical rules are surface formality, involving what the linguists call “frozen forms”—best disregarded except when rules of formality dictate. I recommended the informal register with respect to those two groups of practices. Another set of practices, which involve an artificial naturalness, lacking succinctness, can probably be best understood as the informal analog of surface formality, being a stylized, often folksy mimicry of oral communication, forming the matrix of the new obfuscation, “plain-talk writing.”

Brief writers should shun this kind of informality, and I recommended the formal register for this practice. Finally, I also recommended the formal register for expressive universality, which from the perspective of enforcing formalities as conventions is the least important aspect of formality to conform to but is the most important for calibrating the level of formality in briefs. Expressive universality, only marginally important for conventional surface formality, is deep formality’s essence.

Adjusting deep formality to elicit a far or near mindset

Judge Richard A. Posner’s essay on pure and impure styles is a somewhat helpful guide to varying a brief’s level of deep formality to elicit the most receptive mindset in the judge. (See R. A. Posner, Judges' Writing Styles (And Do They Matter?) (1995) 62 U. Chi. L. Rev. 1421.) Posner’s distinction between the pure style (formal, far) and the impure style (informal, near) classifies judicial opinions rather than briefs, so many of the devices Posner’s pure-style jurists employ involve surface formality, used to impress and even obfuscate—tactics that would violate status formalities if an attorney used them. The pure style, inasmuch as it manifests deep formality, is characterized by a systematic approach to analysis, where the legal issues are presented in their theoretical context. Judge Benjamin Cardozo was an example of a pure stylist. In Palsgraf v. Long Island Railroad, dealing with proximate cause, Cardozo considered the theoretical question of whether a distal cause perdures when a proximate cause intervenes. An impure legal opinion would concern itself more narrowly with resolving the issue in practical terms. Thus, Judge Harold Friendly, a practitioner of a mixed style according to Posner, when trying a case where a definition of proximate cause would have helped, avoided a general approach, writing, “How much ink would have been saved over the years if the Court of Appeals had reversed Mrs. Palsgraf’s judgment on the basis that there was no evidence of negligence at all.” (In re Kinsman Transit Co. (2d Cir. 1964) 338 F.2d 708, 721, note 5.)

Judge Friendly was more informal than Judge Cardozo, invoking a near construal level, because his opinion scrutinized the particulars of the case record. To induce a near mindset, focus on resolving the issues rather than setting them in legal context; focus on the factual context rather than the theoretical context. To induce a far mindset, be comprehensive and make your brief self-sufficient.

Some writers contend that every brief should be completely understandable without relying on the record or the judge's case knowledge. This is good advice for inducing a far mindset, but if your case argument is fact-based and you represent a respondent, a more informal style, which aims at setting out only what the judge needs to learn, can be more persuasive.

Enjoyability

2012-01-16T22:00:00.000-08:00

Explaining a contest award for “Best Writing,” law-technology blogger Dennis Kennedy performed an “actually pompous” speech act: “I like what I like”—the arrogance involved, labeling his personal tastes as “best,” whereas “Best-liked Writing” would be unexceptionable. But “pompous” might be too mild a description if Kennedy thinks that assessing writing style is expressing one’s tastes, which vary less for style than for content.

Liking a writing style usually means enjoying it, and even for legal writing, enjoyability rather accurately measures effectiveness. The measure isn’t perfect. The Writing Virtues, truly criterial, may not line up perfectly with enjoyability; in legal writing, you shouldn’t sacrifice too much Concision for enjoyability’s sake. Although imperfect, the equation between enjoyability and effectiveness is strong to where—if the briefs convey the same information—the better-written brief is usually more enjoyable to read. Comprehension is a motivated activity, and enjoyment is the only incentive a writer can reliably offer.

Dennis Kennedy, then, is correct that his degree of enjoyment measures the writer’s skill. His failing is the common one that’s responsible for why writers are rarely paid what they’re worth: he can’t distinguish his enjoyment of the writing itself from his enjoyment of its content. Readers know when they enjoy, but they usually don’t know what they enjoy. They know they liked an article, but their self-rated enjoyment of the writing is overshadowingly biased by how much they enjoy the content, so that many readers can tell which article is written better only when equally enthused about the contents of each: in persuasion, agreeing with the message; in exposition, finding interest in the information.

Content can be so distracting that reading authors whose substance doesn’t much interest you is a useful exercise, for it lets you focus on the writing style. I read Thomas Hardy for style, although I don’t care much for his romantic tragedies. Good writing, taken pure, is a tonic.

You might think legal writers supplying their work to attorneys have an easy sell, since the attorney readers are interested in their cases and the writers are persuading favorably. Unfortunately for legal writers who are employees or contractors, a trial attorney often most enjoys what’s most strongly favorable to his case. The result is a bias toward shallow analysis and overstatement. Attorneys should have a better opportunity to discern able writers than many other employers of writers have, since attorney interest in the subject matter is a given, but a trial attorney’s sense of enjoyability is often yoked to an exaggerated confidence in the case’s strength.

Punctuating for prosody or for syntax—With a dash of the dash

2011-12-22T19:39:00.003-08:00

My earlier discussion of heavy and light punctuation encompassed only today’s trivial differences in punctuation density, but the differences are much greater across the centuries. Samples from Ben Jonson illustrate the early 17^th century’s predominant style of punctuation, when writers punctuated based on prosody instead of syntax, marking wherever the reader should pause.

If you, my Sonne, should, now, preuaricate,
And, to your owne particular lusts, employ
So great, and catholique a blisse; Be sure,
A curse will follow, yea, and ouertake
Your subtle, and most secret wayes.

This earlier English literature shows exactly what’s wrong with the practice of punctuating whenever you hear a pause: by contemporary standards, you’ll over-punctuate.

The history of written English runs from heavier to lighter punctuation and from reliance on prosody to reliance on syntax. Logically, prosodic punctuation and heavy punctuation need not go together. To lighten punctuation, it's true you must omit punctuating some pauses, but in principle, punctuating for prosody allows degrees of punctuation density; presumably, you would punctuate the longer pauses and omit the shorter. Perhaps English didn’t follow that route because differences in pause length can be hard to ascertain reliably, but the reason for syntactic-punctuation’s lightness is clearer: an excess of syntactic punctuation confuses readers because syntactic elements are nested, whereas our means of punctuating allows only two levels within a sentence. Prosodic punctuation can be dense without confusion, since its only burden is telling the reader to pause.

The main reason punctuation is increasingly based on syntax is that writing is increasingly distinct from speech. How readers should render passages aloud matters less today; how readers should parse passages matters more. Although syntactic punctuation dominates, some writers disagree—and I don’t make any claims about the punctuation appropriate to fiction, dialog being peculiarly prosodic. Also, the purposes behind common punctuation practices conflict, with some accepted practices being based on prosody. The rule that a comma follows any introductory element is a prosodic rule, in contrast to a purely syntactic rule that would omit the comma after a restrictive modifier, such as an introductory “if” clause. Another example of contemporary prosodic punctuation is the use of a comma within a compound predicate where the verbs strongly contrast. A third example countenanced by some writers and grammarians uses commas for emphasis, a prosodic consideration that conflicts with syntactic rules under which commas set off nonessential, descriptive elements—usually amounting to de-emphasis.

Conflict between prosodic- and syntactic-punctuation practices sometimes confuses. The fundamental error of comma usage can be diagnosed as due partly to an appetite for prosodic punctuation: a reader often pauses before a coordinating conjunction. Another confusion leads to setting off restrictive adverbial clauses with commas. Still another prosodic temptation, which comes from the need to breathe when you read aloud, is to punctuate long passages. Temptations to separate a restrictive adverbial clause and to punctuate a long passage here reinforce comma-usage’s fundamental error of punctuating a compound sentence element. (HT: an old posting in WordReference.com.):

Maury licked his lips as Cherise, the dental assistant, leaned over him to adjust the table holding the sharp, shiny tools the oral surgeon would need, and wished his rotten old teeth were strong enough to pierce her lovely jugular.

The forum debated whether a comma goes after need. One commenter pointed out that it's ambiguous whether Maury or Cherise is the one wishing about Maury’s teeth, and the commenter suggested that a comma after need might clarify that it's Maury. A single extra comma doesn’t help, but a couple of commas—the other one after lips—would set off the adverbial clause beginning with as and ending with need. But we would be punctuating for prosody, using reading pauses to clarify meaning; from the syntactic standpoint, commas would improperly set off a restrictive clause. Creating prosodic breaks, such as interrupting sentence flow with a restrictive element, is the almost-exclusive function of the dash:

Maury licked his lips—as Cherise, the dental assistant, leaned over him to adjust the table holding the sharp, shiny tools the oral surgeon would need—and wished his rotten old teeth were strong enough to pierce her lovely jugular.

If, as there’s reason to expect, the trend toward punctuating for syntax instead of prosody continues, the future will falsify prophesies of the dash’s demise. As writing detaches from speech, prosodic punctuation doesn’t disappear, but writers can quarantine it within dashes.

“Decision fatigue”: Its implications for analyzing issues on appeal

2011-12-06T20:32:00.002-08:00

A controversial theory from psychology, decision fatigue carries unconventional implications for brief writing. The theory holds that the act of choosing and other acts of self-control draw on a limited store of energy, which you can only fully replenish with a night’s sleep, although drinking or eating sugar brings immediate relief. When you run out of decision-making juice, you avoid choosing or you choose impulsively, and you are more apt to lose self-control, whether by raging at someone, failing to persevere at an unpleasant task, or (especially) over-eating. While people are depleted by too many choices and although people should economize on their decision-making, avoiding choice isn’t always the answer, since unwanted tasks also deplete the energy store devoted to self-control.

Decision fatigue explains some experiences of writers. The writing process is decision laden, which probably explains the paucity of words—estimated as low as 500—a writer can set down in good order on any given day. The replenishment sugar provides explains why writers tend to get fat—if they do—although I only get scrawnier.

These experiences were never terribly hard to explain, but you probably wouldn’t expect the following, which exposes a source of judicial bias. In an Israeli study, researchers found that decisions were favorable to candidates for parole in 70% of cases heard in the early morning, but 10% of cases heard in the late afternoon. Research reports emphasize that the judges react to depletion by opting for the default, but for lawyers’ purposes, the most important finding may be that the court’s default option is to deny a petition.

While the study dealt with only a single venue, it suggests that depleting the judge’s willpower disadvantages the petitioner—a result providing writers of appellants’ briefs with another reason to avoid issue proliferation—but the respondent may benefit from the judge's depletion. The effect is probably not as strong as in the Israeli parole hearings, where the risk of granting parole was much greater than of denying it; whereas in an appellate case, reversal is only moderately more risky than affirmance. The difference is enough to make affirmance the default alternative, experienced as involving less choice, mainly because the reversing court has to state publicly that colleagues erred.

If depleting the judge’s supply of willpower benefits respondents, they may help themselves by using a slightly subversive strategy. The respondent should try to increase the judge’s decisional load yet must also avoid confusing or antagonizing the judge by originating needless complexity. The respondent can sometimes achieve these often-opposed goals jointly by repackaging the issues presented on appeal. Knowing that that decision fatigue benefits respondents should reduce their worry that restating the issues to simplify their briefs complexifies decision-making by the courts, which, depletingly, must now consider competing issue sets.

The work on decision fatigue, undertaken primarily by Roy F. Baumeister and his colleagues, has been criticized by social psychologist Carol Dweck, who found that believing you have an unlimited supply of willpower can enable acting as if you have it abundantly. Although popular coverage of Dweck’s research has submerged the original findings, the Dweck research bears little practical significance. People can eke out painfully higher levels of willpower, but they don’t ordinarily want to.

The writer's ineffable "voice": The immutability of optimal sentence length

2011-11-22T17:49:00.001-08:00

When a friend phones, you know her identity by the sound of her voice. This is the basis for the writer's-voice metaphor, but it’s only a metaphor. The features distinguishing spoken voices refer to the physical dimensions of the sound waves the vocal chords produce, and a pen’s scratch or a keyboard’s click are failed candidates for the voice that’s purported to infuse the scratcher or clicker’s document.

If the spoken voice is the usual metaphor, expression of the writer’s personality is the standard explanation, although it retreats to a murkier metaphor. A real explanation would link the specific characteristics of writing said to constitute voice to specific personality traits. Perhaps someone will someday link writers’ personality traits to expressive style, but before theorists can even speak of a linkage between personality and manner of written expression, they have to know the expressive traits voice comprises. When graphologists, for example, claim styles of handwriting are linked to the writers’ personalities, they have in mind connections like, “If the writer makes her dots above her letter ‘i’ like little circles, she will have histrionic tendencies"; or, “A rising baseline expresses an optimistic outlook.” Writing-voice exponents don’t specify any candidates for the expressive equivalents of circular dots or upward slope, never mind whether they correlate with personality.

Nobody knows how to talk about writers’ voice; yet, some writers manifest a distinct “voice.” Why should being specific about what they manifest be so difficult? My answer is that there’s an obvious solution, but it is, on second thought, obviously wrong—so obviously, that we don’t even consider it; but no other solutions are forthcoming. The obvious solution is that expert writers whose voices are said to differ write sentences distinctive in their length. The rebuttal is that, if voice is worth discussing—if writers can find their authentic voices—then voice can’t be a trait writers adopt as casually as making their sentences longer or shorter. Finally, the mistake the rebuttal commits is ignoring that an expert writer lacks the capacity to change his average sentence length without damaging his expressive capability: optimal average sentence length is immutable.

If you’re like me, when pressed for examples of distinctive voice you think of Hemingway and Faulkner, who are so unlike in the length of their sentences that it overshadows other differences. A second formal difference between them, preference for common versus esoteric words, accommodates different typical sentence lengths: to cohere, long sentences require abstraction. But problematically, average sentence length seems a matter of choice or preference, rather than an inherent personal quality. The idea that finding your voice means achieving stability at your optimal sentence length strikes, at first, as crudely reductionist. Writing teachers often advise students to shorten their sentences, and to the extent this advice helps, it would not seem tantamount to directing students to write in an inauthentic voice. Misleading in this scenario is that we’re talking about students who haven’t "found" their voices—and probably never will. Imagine telling Faulkner to shorten his sentences.

An element of commercial branding probably contributed to polarizing the Hemingway-Faulkner contrast, but I have an example of a professional writer being “told” to shorten his sentences. Science writer Steven Berlin Johnson—on whose casual research the present sentence-length theory of voice is based—found that Malcolm Gladwell’s average sentences were 6.5 words shorter than Johnson’s. His reaction is telling, Johnson declaring, “A 25% drop in sentence length has to alter the reading experience dramatically"; and he joked, “Clearly, the only things separating me from selling ten million copies of my books are those extra 6.5 words per sentence.” While this was overstatement—the writers’ topics no doubt affect their popularity—it probably isn’t entirely false, since a greater number of readers can understand short sentences than can understand long ones. This is why primary-school texts contain very short sentences! Yet, there’s no sign that Johnson—already an accessible writer—tried to make his writing still more accessible by using shorter sentences. Instead, Johnson’s posting focused on each writer's invariant sentence length—evidence that, for the expert writer, optimal sentence length is an immutable trait. For immature writers, the advice to shorten sentences nudges them toward their “authentic voice” or, at least, toward a degree of syntactic complexity they can manage, but it can be taken too far—and often is.

Expert-writers' consistency in their works' syntactic complexity is evidence that mature voice is optimal average sentence length; evidence against this hypothesis is that average sentence length has declined over the years, from 50 words in pre-Elizabethan times, to 29 in Victorian times, to 20 words per sentence, today. (William H. DuBay. (2006) Unlocking Language: The Classic Readability Studies.) If optimal average sentence length is voice, it shouldn't change over generations: if environments change it, then why not training regimens, so that Steven Berlin Johnson could train himself to write shorter sentences—to write more like Malcolm Gladwell?

The objection seems surmountable. In an era when a “good writer” was expected to average more than 30 words per sentence, one who could sustain only 20 would choose a different occupation; today, it can seem the reverse is true. With popular writing style ever increasingly that of marketers, it may seem that those whose genes cause them to write their best using complex syntax will be declared incompetent. But this is unlikely: the unity of language and thought suggests that well-managed syntactic complexity accompanies competent ideational complexity. Before mass advertising arose, the world might have found little use for the master of the simple sentence, but today's complex world still needs complex thinkers.

Misconstruing the compound as elliptical: The fundamental error of comma usage

2011-11-12T22:14:00.005-08:00

I spend an outrageous amount of time cogitating about the comma. Not a specific comma, to which I rarely give a second thought, but about commas in general. These aren’t the most popular blog entries. What drives me is the sense that there’s something wrong—yet widespread—in comma usage and that my alternative isn’t quite right, either.

With the help of one of Mark Nichol’s daily postings, I think I’ve found the central grammatical error underlying problems in comma usage among educated professionals and professional writers. Mark, an editor, has a good eye for detecting writing errors and a remarkable fluency with examples; I’ve learned from his tips. This time, I’ve learned from his mistake; and I figure that if Mark can commit it, the error is common. Let’s start with Mark’s example (which, to be fair, will be put to use outside his posting’s topic, comma splice).

At times, it resembled the pitch of a whirring blender, and at other moments, an angelic choir.

I think the correct punctuation is:

At times, it resembled the pitch of a whirring blender and, at other moments, an angelic choir.

Grammatical analysis is significant here because it can dictate punctuation, since punctuation’s function is to parse text into units we can think of as chunks—to carve text at its joints. Under this view, the most fundamental use of the comma is to separate independent clauses that are combined by means of a coordinating conjunction, such as and, but, or or. This centrality makes it pivotal whether an element is an independent clause. The fundamental error of comma usage is parsing as a compound sentence what only involves a lesser compound (not constituted of independent clauses): a compound subject, compound predicate, compound object, or compound predicate complement. While I knew that before, what I now understand is that writers err in grammar by reading compound elements as elliptical when they commit this error in mechanics.

In Mark’s sentence, he takes (as he says in Comments to his posting) the words following and as being elliptical, which means that to understand the sentence’s grammar, you must assume that some words in the fully grammatical version were omitted. (The second sentence of this entry involves genuine ellipsis.) On Mark’s parsing, the fully grammatical version of his sentence would read:

At times, it resembled the pitch of a whirring blender, and at other moments, it resembled an angelic choir.

If this were the correct parsing, at other moments, it resembled an angelic choir could stand alone as a sentence, making it an independent clause. But this parsing is wrong; the sentence isn’t elliptical, as there’s nothing surfacially ungrammatical about it. The sentence with revised punctuation is fully grammatical because angelic choir isn’t the object of a second, elided, predicate, resembled; rather, it is part of a compound direct object of the original resembled. In skeleton, the sentence says:

It resembled the pitch and the choir.

When simplified, it’s obvious that pitch and choir are parts of the compound direct object, pitch and choir.

Tina Blue, an English-department grammarian, gets the principle right and gives examples of how the rule applies to the different kinds of compound element. She hedges on compound predicates: “Occasionally, however, if the parts of a compound predicate are unusually long, [sic] or if the writer feels the need for special emphasis, a comma can be used with a compound predicate. Such commas should be treated as a heavy spice, though, and used sparingly... If you use such commas frequently, then you have a stylistic tic that you need to work on.”

But for these special circumstances, the better solution might be rewriting the sentence as a genuine compound sentence. An example of sentence containing a compound predicate that Tina Blue thinks might stand a comma but that doesn’t require one is:

The last candidate spoke for what seemed like hours, and thoroughly bored them.

Compare with:

The last candidate spoke for what seemed like hours and thoroughly bored them.

And with:

The last candidate spoke for what seemed like hours, and he thoroughly bored them.

The first version disorients readers by leading them to expect the elements connected by and to have equal status; dividing a single predicate with a comma, moreover, leads readers to forget the sentence’s subject, when they need it to interpret the predicate’s second major word. The second version—the way I would have written this sentence previously—leads readers to expect a noun following and, instead of a verb. The third—at only slight cost in concision and euphony—is clearest. For legal writing, it’s the best choice.

"Plain talk" writing: The new literary obfuscation

2011-11-05T22:53:00.003-07:00

“Plain-talk” writing has replaced pretentious writing as the main stylistic mannerism impeding thought. More than a half century ago, George Orwell identified vague abstraction and stale imagery as contributors to political bedevilment: they are the means for making the vile acceptable by concealing its substance. The object of Orwell’s scorn hasn’t disappeared. Politicians and their sycophants still substitute high-flown cliché for penetrating depiction, but that form of literary dishonesty is, today, overshadowed by the abuse of cognitive fluency—by the cult of simplicity. This mode’s mainstay is the non-sequitur; its object of concealment, logical irrelevance; its mechanism, the short, plain sentence. When the new obfuscation becomes pedagogy, writing teachers present its virtue as that of writing as you talk; they call the style “conversational.” It demonstrates that concreteness and vagueness are entirely compatible.

Everyone knows you can’t write efficaciously the same as you talk. So, common sense revises the plain-talk project—using the simple and illogical expressional methods the advocates purvey. A writing blog, CopyBlogger, advises—to the applause of commenters—“Write like you talk, except better. Better words, better arrangement, better flow.” As if this advice were informative.

As a rule, no examples are given, and some of this style’s most ardent practitioners may deny their practice of “writing as you talk.” Writing teacher Wayne Schiess responded to Dr. George D. Gopen’s disparagement of this advice by calling his argument a straw man. Wayne had never heard this advice.

Blogger Luke Muehlhauser provides the rare express example of writing as you talk, and his example ably, if unwittingly, demonstrates how this approach to writing undermines lucid thought: (1), below, is Muehlhauser’s rendition of how a writer would ordinarily state a thought; (2) is Muehlhauser’s recommended rewriting, designed to combine the clarity of writing with the readability of talk:

(1) Perhaps the toughest intellectual work we must do regarding European reconstruction is to realize that it can be achieved through nonpolitical instrumentalities. Reconstruction will not be politics, but engineering.

(2) We have a tough job ahead of us. We need to figure out how to reconstruct Europe. It won’t happen with political forces. The European reconstruction will be a matter of engineering, not politics.

The plain-talk version, (2), is more cognitively fluent than is (1): it deftly hides the contradictions and vagueness baldly evident in (1). First, reference to “instrumentalities” in (1) impels readers to seek to identify them and calls readers’ attention to the merely negative characterization of the “instrumentalities” as “nonpolitical.” Second, the reader of (1) naturally demands to know how “we” are supposed to act through “nonpolitical instrumentalities,” when “politics,” after all, denotes our means for consciously coordinating the actions of numerous persons. Third, if realizing that Europe can’t be reconstituted through politics requires tough intellectual work (it actually was reconstructed through the very political Marshall Plan) the writer isn’t entitled to announce the conclusion in advance of the required work. These objections, occurring naturally to the reader of (1), make that version clear but hard to read. The reader tries to make sense of it, in the face of signals that (1) is false, and readers find known falsehood harder to understand than probable truth.

The “plain-talk” version, (2), expresses the same information contained in (1). The difference is that the clauses in (2) are poorly connected. Although (2) urges readers to figure out how “we” can reconstruct Europe, the inconceivability of collective action being nonpolitical is pushed from the foreground by replacing nonpolitical instrumentalities, through which we act, with nonpolitical forces, which happen. Furthermore, the unexpressed connection between, on the one hand, the conclusion about Europe’s nonpolitical reconstruction and, on the other, the intellectual work from which the conclusion follows, hides absurdity, that of announcing in advance a conclusion of work undone.

The integration fostered by (1)’s concision fosters skepticism of its flawed reasoning. The disjointed “conversational” style of (2) makes the flawed reasoning easier to overlook. Whether Muehlhauser prefers this outcome is unclear.

How new is cognitive fluency?

2011-10-25T19:06:00.001-07:00

Except for the Baker law-review article discussed in the Disputed Issues entry on cognitive disfluency, and the Disputed Issues entry applying cognitive-fluency principles to citation formats, the legal-writing world has paid scant attention to the spate of cognitive-fluency research, which appraises simplicity’s benefits and drawbacks for document reception. Plain-language blogger Cheryl Stephens captures what may be the chary outlook of many legal writers:

Scientific research has expanded so much in the last 20 years that plain language practitioners could not keep up. Money for research is needed to ensure that plain language procedures take advantage of current scientific discoveries. The most significant of these seem to be in the new area of study: cognitive fluency.

Another likely source of neglect is a prevalent belief that cognitive fluency is but a fashionable name for well-known effects. The cognitive-fluency results are new but not hard to understand, yet embodying the results in crisp recommendations is elusive, requiring an understanding of the tension between the writing Virtues Clarity and Concision, as their reciprocal modulation balances fluency and disfluency.

Cognitive fluency can seem like old hat because writers have long appreciated the value of minimizing mental effort for comprehension. Much of the recent findings’ novelty lies in in the advantages of disfluency; but even regarding fluency’s advantages, the research differs from traditional understanding, where avoidance of unnecessary complexity is based on the reader’s limited capacity to maintain multiple thoughts in a conscious state simultaneously, a rationale defining simplicity as well as justifying it. At least as long ago as 1852, when philosopher Herbert Spencer wrote The Philosophy of Style, this limited-capacity concept underpinned the rationale that the less capacity readers must allocate to decoding a communication, the more they can allocate to thinking about it. Readers were also expected to be less likely to misunderstand the simple, since it left spare capacity. The Disputed Issues entry “A rare shortcut to better writing” applied the hoary theory of limited-capacity attention to writing’s production, to explain how faster typing improves it. Science had seemingly vindicated the limited-capacity theory when psychologist George Miller published his finding that humans had a limited short-term memory capacity that varied between five and nine bits of information, as when a tester reads a digit series, one number per second, and few subjects will be able to remember more than nine or less than five. Miller’s finding this consistent limitation of conscious apprehension—Miller’s famous “magic number seven plus or minus two”—ensured that the digit-span test would remain part of standard intelligence testing, despite the low correlation with general intellect.

The past decade’s cognitive psychology retains the concept of working memory, but reconceptualizes it as the person’s skill in directing attention to recently conscious or related thoughts, which, hypothetically, are “activated” but unconscious. The subject’s preconscious thoughts—to use Freud’s term for ideation not conscious but amenable to being made so—are accessed in experiments where the subject is diverted from a memory task by subsequent attention-consuming operations. An easy test of this kind is given during standard psychiatric mental-status examinations, when the tester directs the patient to recall three words, which must be recited at the end of the examination, during which the tester elicits unrelated information. That the important component of working memory isn’t limited by fixed storage implies that we can’t deduce mnemonic efficiency from simplicity (which is to say, from cognitive fluency). Here’s an example—compare (1) and (2):

(1) Sentences can be short. They can also be long. This is a good thing. Lack of variety is wearying. It may drive you to distraction.

(2) It’s a good thing that sentences can be short or long, because lack of variety is wearying and may drive you to distraction. (H/T: Mark Nichol, Daily Writing Tips [for the examples].)

The four-sentence version (1) is simpler, its simple sentences bereft of complicating structural nuance. Speaking theoretically, the complex sentence (2) activates more unconscious ideas, inducing a more powerful working memory, not one limited to the simple sentences’ smaller ambit.

If the clearest prose isn’t the most fluent, if clarity is an optimum on the fluent – disfluent dimension, then the advantages of clarity aren’t those of simplicity. What, then, is the advantage of clarity? The answer might seem self-evident. Obviously, it might be thought, a writer wants to be clear so that he will be understood to mean what he does mean. Clarity means easily understood, the “obvious” thought continues, and the easier it is to understand, the more likely it will be understood. But this is fallacy. What requires less effort to understand is not, in logic or in fact, necessarily clearer, more likely to be understood—not if greater effort is forthcoming. This is the nontraditional conclusion on which cognitive-fluency and working-memory research converge.

Some writing skills can undermine thought. THE UNITY OF LANGUAGE AND THOUGHT. Part 3.

2011-10-18T10:29:00.001-07:00

Earlier entries in The Unity of Language and Thought series:

Part 1. Can bad writers be good thinkers?

Part 2. Are good writers good thinkers?

The skills improving persuasiveness contribute unequally to thought; some may even detract: while good writing renders ideas more precise and manipulable, that’s not all it does. Distinguishing the thought-promoting aspects of persuasion prevents beguilement by rhetorical flair.

Ornamentation and convention contribute little if any to thoughtful quality. Ornamentation (which will consume most of our attention) increases a document’s emotional appeal. Euphony, dependent on surface qualities of expression—those which rarely survive translation—falls in this category. Alliteration, assonance, and consonance bear little relation to the quality of thought.

Also playing on affect are the rhetorical figures (excluding simile and metaphor, because they can make an important contribution to Clarity, a Writing Virtue). Law Professor Ward Farnsworth’s new book Farnsworth’s Classical English Rhetoric abundantly illustrates the rhetorical figures, which invoke three types of pattern: repetition of words and phrases; structure, such as parallelism; and dramatic devices, such as rhetorical questions. Repetition serves adornment most single-mindedly; contrast with parallel structure, obligatory when the elements are logically parallel, as in lists and correlated conjuncts.

The distinction between clarifying and purely rhetorical devices is the difference between a simplicity due to efficient compression of information—as accomplished by any good theory—and simplicity for presentation’s sake. An example of the latter is Republican Presidential–candidate Herman Cain’s 9–9–9 tax plan, a proposal chosen for its sheer simplicity, unbolstered by reasons for taxing the three components identically. The difference is between scientific elegance and marketing catchiness.

This is not to say that the rhetorical figures are unimportant in legal writing. To the contrary, instruction is remiss in its neglect of rhetoric, since legal-brief writing, above all, is persuasive. The point is rather that the rhetorical-figures’ persuasiveness is irrational when it rests on the general qualitative correspondence between writing and thought. But factors besides the quality of thought help persuade judges; and judges, all too human, aren’t entirely rational.

This analysis of rhetoric’s somewhat unreasonable role provides another explanation for legalese, based on its function. Insofar as rhetoric is a means to persuasiveness neither reflecting the writer’s quality of thought nor enhancing the reader’s rationality of judgment, a legal system priding itself on procedural egalitarianism may seek to banish it. While identifying rhetoric by black-letter rule might be impossible, the “system” could approximate its goal by fostering a rhetorically unartful legal-writing style. At the same time, this style incorporates, as “substitute gratification,” formulaic rhetoric, such as trite doublets and triplets. (Notice the analogy between how the law staunches pomposity by supplying pompous forms that don’t make the lawyer look pompous and how it suppresses rhetoric by supplying rhetorical forms with an antirhetorical effect.)

Following arbitrary conventions is another major way (after ornamentation) to improve as writer without necessarily improving as thinker. An excellent speller can be an incompetent thinker. The same goes for other arbitrary conventions, such as capitalization and font choice.

Font choice brings us to the second reason for distinguishing those literary aspects enhancing thought from those favoring persuasiveness by other means. Over-valuing one’s own ideas is a pitfall when seeking objectivity and rationality. We’ve seen how writers—by sheer exposure—fall in love with their own style, but exposure also endears their self-produced content to writers’ hearts. Writers striving to think clearly and deeply can benefit from less persuasiveness in their private writing. This is perhaps part of the benefit of handwritten drafts and other formal variations decreasing documents' cognitive fluency, thereby increasing writers' self-criticalness—improving their logical rigor, representational accuracy, and intellectual honesty. Reviewing one’s writing cast in a more disfluent typography, such as 8-point fonts, produces the same effect. Varying the medium—screen or paper—also can contribute to a more critical attitude toward one’s work. These variations benefit private thought for the same reason they sabotage public persuasion.