“Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word” by Judge Robert E. Bacharach of the U.S. Court of Appeals for the Tenth Circuit (American Bar Association 2020) 168 pages $89.95 nonmembers $79.95 members.
What does an appellate judge do to understand why some briefs stymie but others persuade? To understand his negative reactions to certain writing? To understand how others will react to language in his judicial opinions? He dives headlong into the science of psycholinguistics.
Judge Robert E. Bacharach of the U.S. Court of Appeals for the Tenth Circuit has served on the federal bench for over 20 years. Prior to being appointed to the bench, judges were the audience for his writing. On the bench, he sought to understand the reasons for his positive and negative reactions to certain language. He also became concerned about the reactions of others to his use of language. He sought answers in psycholinguistics: the study of the relationships between linguistic behavior and psychological processes. His (unsurprisingly) well-written new book distills practical drafting, style and grammar lessons for the bench and bar from science. Examples of elegant prose techniques from prominent judges and attorneys drive the lessons home.
When I asked him about what impressed him about the writing of great advocates he’d studied, he said that he was struck and surprised at how easy it was to read. It wasn’t the magical turns of phrase, but that you never had to pause. Clarity, not personal style, was the trademark.
Psycholinguistics teaches us that decreased “processing fluency” reduces reader comprehension and recall—and creates negative feelings toward the author. Computational linguistics teaches us that properly punctuated sentences “massively outperform” unpunctuated sentences. Using these scientific principles, Bacharach mobilizes the tools of grammar, punctuation, typography, margins, headings and paragraphs. Each tool is used to focus reader attention, to reduce fatigue, to improve comprehension and to create positive feelings toward the author’s argument.
Some lessons were a surprise. For example, legal writing from top legal advocates and judicial opinions shows that the passive voice can be a powerful device. We have been taught to avoid the passive voice. But the passive voice should be used to shift attention to salient facts, to downplay an actor, to avoid tedium or to reintroduce old information without needless repetition. Concrete examples are provided.
- What else does “Legal Writing” teach about the psychological effect of language?
- Providing context and foreshadowing rhetorical structure improves comprehension and recall.
- Human attention focuses on materials following text headings.
- Topic sentences improve paragraph comprehension.
- The last part of a sentence holds the most psychological impact.
- Anaphora, epistrophe and alliteration improve reader attention and memory.
- Abstract nouns, nominalizations, noun plagues, unnecessary expletives and empty verbs cause reader fatigue and interfere with comprehension.
- Em dashes are stronger than parentheticals that are stronger than commas.
- Paragraphs using “legalese” are perceived to be weaker substantively than those in plain English.
- Too many dates cause red herrings.
- Lists are good memory tools.
Attorneys spend a tremendous amount of time editing and being edited. We usually work under stressful circumstances and tight deadlines. Invariably, there is pressure to reduce word count. The psychological insights and writing tips in “Legal Writing” will help to organize and to improve the entire process.
By looking at our briefwriting and prose through the lens of psycholinguistics, all of the old grammar lessons take on a new life, vibrancy and urgency. In today’s legal practice, your client’s lives and livelihoods depend on whether a judge’s clerk—or a judge—is captivated by the story you and your team tells. With page limitations, a team of attorneys may be reduced to making complex arguments in very little space. Is it credible, powerful and persuasive right from beginning to end? Or does it confuse and belabor? Grammar is a matter of survival. Psycholinguistics provides the analytical tools to put muscle into your grammar and make the winning argument.
“Legal Writing” cautions that no one is likely to read your fancy citations. The reader—despite your assumptions—may not remember a thing about the case. If the reader is not driven toward your conclusion from the outset, you may lose. Seize the moment and don’t relent.
In conclusion (and yes “Legal Writing” argues for substantive conclusions), an important new book translates the science of psycholinguistics into practical lessons for working attorneys and jurists who wish to persuade and educate through prose. It will inspire you to sharpen your skills and deserves space on your bookshelf.
Raymond J. Dowd is a litigation partner at Dunnington Bartholow & Miller in New York City and serves as an adjunct professor at Fordham University School of Law.