I’m pleased to announce that my new book with co-author Kamela Bridges is available from Aspen Publishers and Amazon:
Writing for Litigation
My friend and colleague Kamela Bridges is a 10-year legal writing teacher and a former litigation partner at a major Texas law firm. The expertise and experience she has poured into this book make it unique—there is no other book as focused on practical litigation-writing skills.
Also, I contributed some writing advice.
Witnesseth, Controversial, Long-Lived Archaism
The word witnesseth, a legal term used in deeds, contracts, and other formal documents, passed away Monday after a decades-long decline and what some say were well-deserved attacks. Those close to the word said it died in a legal form pulled up on a smart phone in Little Rock, Arkansas. It was 517 years old.
One of the most enduring Elizabethan archaisms, witnesseth’s late decline represented a steep fall from its heyday. It rode high on the fear of “changing the form” for more than two centuries. It prospered despite challenges, such as one raised in 1744, when a legal secretary first asked a lawyer, “what is this word, and why are there spaces between the letters?”
Witnesseth maintained its entrenched position in legal documents, although it was more and more often relegated to land deeds, until at least 1957, when a busy real estate lawyer in Waukeegan, Illinois, inadvertently left it out of a draft deed, which a younger lawyer dutifully typed up. The real estate transaction closed without incident, and witnesseth began its slow descent.
Rumors persist among some hostile to witnesseth that the reports of its death are premature and that it is lying low in old formbooks and county real estate filings, waiting to be recognized and used again.
I’ve just learned that the Texas Pattern Jury Charges Plain Language Project will receive a ClearMark award from the Center for Plain Language at an awards ceremony in Washington D.C. on April 28. I was the writing consultant on the project, which began in 2005 and culminated in final approval of the revised jury charges by the Texas Supreme Court on April 1.
I have written about the project here:
http://www.michbar.org/journal/pdf/pdf4article1774.pdf
Others who will be recognized for their work on the project are
Supreme Court of Texas
Texas Pattern Jury Charges Oversight Committee
Texas Supreme Court Advisory Committee
Justice Nathan Hecht
Justice Tracy Christopher
Justice Kent Sullivan
Daniel V. Pozza
Alexandra Albright
Sharon Sandle
Pat Nestor
Courtroom Sciences, Inc.
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).
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:
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:
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.