Monthly Archives: March 2011

Does the quality of writing matter? Answer 2

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Are there any empirical studies showing that the quality of the writing in a brief has an effect on its success?

In general, the answer is no, but I’d like to highlight another important article on a related subject.

The author asked judges to choose which of two versions of a legal argument they considered more persuasive. Half the judges chose between a traditionally worded (legalese) argument and a simpler, plainer (plain English) version. The other half chose between the legalese version and a version that used first person, contractions, and so on (informal). The study collected responses from trial and appellate judges in state and federal court and sorted results by those criteria and by age, experience, sex, and geographical setting (rural or urban).

Some results:

On average, judges considered the plain-English version more persuasive than the legalese version 66% to 34%. Federal appellate judges chose the plain English version 77% to 23%.

On average, judges considered the informal version more persuasive than the legalese version 58% to 42%. Female judges chose the informal version 83% to 17%, and rural judges actually chose the legalese version over the informal version 55% to 45%.

The full article is worth reading, and I’m pleased to say that I helped the author with the project when he was a law student.

Sean Flammer,  Persuading Judges: An Empirical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 Legal Writing 184 (2010).

Does the quality of writing matter? Answer 1

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Are there any empirical studies showing that the quality of the writing in a brief has an effect on its success?

In general, the answer is no. But new research is happening, and I’d like to highlight two important articles on the subject.

The first article reports on a study of the use of intensifiers (very, clearly, obviously, and the like) in appellate briefs. The authors state, correctly, that lots of experts on legal writing recommend against intensifiers and especially against their overuse. The authors then measure intensifier use against outcomes. Their conclusion:

  • Using intensifiers frequently in a brief, particularly a brief for the appellant, is usually associated with a statistically significant increase in adverse outcomes for the party using the intensifiers.

Lance N. Long and William F. Christensen, Clearly, Using Intensifiers Is Very Bad—Or Is It? 45 Idaho L. Rev. 171, 171 (2008).

When appellants use a lot of intensifiers, they tend to lose.

The authors clarify that no causal connection is shown, but the article is still interesting and useful.

The second article, by the same authors, reports on a study of the readability of briefs. The authors measured briefs according to the Flesch Reading Ease scale—a scale of zero to 100 that measures average word length and average sentence length, with “plain English” being a score of at least 60. (The briefs in the study tended to average about 33-34 on the scale.)

The authors measured readability scores against outcomes. Their finding:

  • Using the Flesch Reading Ease scale, the authors found no statistically significant relationship between the readability of a brief and its success.

Lance N. Long and William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning an Appeal?—An Analysis of Readability in Appellate Briefs and Its Correlation with Success on Appeal, 12 J. App. Prac. & Proc. __ (2011).

Shorter sentences and smaller words won’t necessarily win.