Wednesday, November 29, 2006

Persuasion: get rejected, then win

Something interesting to think about. A controversial suggestion from a well-researched law-review article on persuasive writing. The piece I quote from is--

Kathryn Stanchi, The Science of Persuasion: An Initial Exploration, to be published in the Michigan State Law Review, p. 411, 2006, and available on the web at:

(footnotes omitted)

* * *

3. “Door in the Face”: Create a Scenario of Initial Rejection
Seemingly contrary to foot-in-the-door, there is some research that compliance is enhanced by making a large request first.51 The strategy of beginning a persuasive message with a more contentious proposition that the reader is likely to reject is called the “door in the face” strategy. The research shows that the recipient, having rejected the first larger request, is thereafter somewhat more inclined to acquiesce to a second, smaller request.

* * *

4. Argument Chains that “Work on” the “Door in the Face” Principle
Because the door-in-the-face principle conflicts with a longstanding tradition of appellate advocacy writing, briefs that begin with an aggressive, controversial premise are rarer than those that begin with benign, agreeable premises. There are, however, some examples that demonstrate the tactic.

In the plaintiff-respondent's brief in Meritor Savings Bank v. Vinson, for example, the respondent began her merits brief before the United States Supreme Court by arguing that certiorari was improvidently granted, and made arguments about the record that she did not make in her brief responding to the petition for certiorari. Although beginning the merits brief with this argument had its strategic and logical advantages, the argument had many of the hallmarks of a door-in-the-face initial request.

First, it was risky. It was highly unlikely that the Supreme Court would accede to an argument that raised something new in the merits brief that was not argued in the response to the petition for certiorari, which, as petitioner pointed out, was the more appropriate place for the argument procedurally. Moreover, there was nothing to indicate that there was disagreement among the members of the Court about granting the petition for certiorari, which means that, at a minimum, four Justices voted to grant certiorari and the others did not feel strongly enough to dissent.

Second, the attack on certiorari was a “big” request. It asked the Court to reverse its initial decision and publicly admit that it had mistakenly granted the original cert petition.

Finally, the request asked for a “big” win; were respondent to convince the Court to reverse its initial grant of certiorari, that decision would let stand as precedent a court of appeals opinion highly favorable to the respondent on a number of cutting-edge issues. For all of these reasons, the Court was likely to reject the argument, and, indeed, it did. Neither the majority opinion nor the two separate concurring opinions even mention the argument.

On the other hand, the request was neither unreasonable nor absurd, and there is evidence that the Court found aspects of it persuasive. Aspects of the respondent's arguments about certiorari, particularly the abstract and ambiguous quality of key facts in the record, are echoed in the Court's discussion of respondeat superior liability. A request that involves a high risk of rejection but is reasonable is critical to the door-in-the-face response. Moreover, the respondent achieves a number of significant victories with the arguments that follow the “big” request, including an overall win on result (the Court affirmed the favorable decision below).

Monday, November 27, 2006

Persuasion: what not to do

Techniques that fail with judges are--
  • throwing in the kitchen sink instead of picking winning arguments and developing them;
  • attacking opposing counsel and other judges (even when they deserve it);
  • offering up a historical treatise instead of arguing an issue;
  • writing facts in a conclusory way;
  • using adverbs and adjectives instead of nouns and verbs;
  • using intensifiers and qualifiers;
  • shouting at readers with false emphatics like italics, underlining, bold, and capitals;
  • not applying fact to law;
  • overstating anything, because understatement is a key to persuasion;
  • using long quotations or, worse, misquoting and misciting;
  • not opening with an orientation, or roadmap, to tell readers where they're headed; and
  • dwelling on givens.

Gerald Lebovits, Legal-Writing Myths-Part I, N.Y. State B.J. 55, 56 (Feb. 2006).

Questions presented: using "whether"

I had thought that the use of the word whether to begin an issue statement or question presented was dying out. I was wrong. According to research in an article by Brady Coleman and others, the trend from 1975 to 2002 is a 10% increase in the use of whether to begin a question presented in U.S. Supreme Court briefs.

Odd. I had hoped the trend was in the opposite direction. It should be.

Two thoughts:

Maybe the practice in state courts is different--not as stodgy and outdated--and the practice in the U.S. Supreme Court is behind the times.

The office of the solicitor general uses whether 94% of the time, so maybe that office is perpetuating this tired tradition.


Brady Coleman, et al, Grammatical and Structural Choices in Issue Framing: A Quantitative Analysis of "Questions Presented" from a Half Century of Supreme Court Briefs, Am. J. Trial. Adv. 329 (Fall 2005).

Wednesday, November 22, 2006

Word usage: can't we all just say "sue"?

Here are some wordy alternatives to sue:
  • bring a cause of action against
  • initiate an action against
  • institute a cause of action against
  • commence a cause of action against

From Mark Cooney, Just Sue 'Em!, Mich. B.J. 52 (May 2006).

Plain language: it's hard

Any second-rate writer can make things more complicated; only the best minds and the best writers can cut through. It takes skill and hard work to write in plain language.

--Joseph Kimble

Monday, November 20, 2006

Law review: does it improve writing? Part 2

Here is a broad overview of the findings of my student in the paper about law review.

Finding 1
Based on surveys of first-year law students, there was a consensus that participating on a journal would improve your writing.
  • The chance to read and edit scholarly writing and the chance to write and receive feedback on a note were the two main reasons given.

Finding 2
Based on surveys of second-year law students holding staff positions on law journals, there was a consensus that participating on the journal was not improving their writing.
  • Staffers found themselves focusing almost entirely on citation checking, which they did not believe was improving their writing. Any text editing they did was minimal and did not result in any feedback. As for writing a note, they felt they were writing without much guidance, and those who had finished reported that they did not not get much, if any, feedback.
Finding 3
Based on surveys of third-year law students who held editorial positions on law journals, there was a consensus that participating on the journal had improved their writing.
  • When asked how participating on the journal had improved their writing, the majority replied that it had helped them master citation.
What conclusions do you draw from this?

Thursday, November 16, 2006

Persuasion: use analogical reasoning

From an excellent book on persuasive legal writing:
    Despite its preeminence in legal reasoning, rule-based analysis suffers from a major shortcoming: It is inconsistent with the fundamental way the human brain processes information. Recent developments in cognitive psychology suggest that humans do not think effectively in terms of abstract general propositions.
Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing 259 (Aspen L. & Bus. 2002).

My take is this: whenever possible, instead of asserting the a rule leads to a certain result, show how it leads to that result by making analogies from precedents to your problem.

Lone Star LRW conference

The program committee for the 2007 Lone Star LRW Conference is now accepting presentation proposals. The conference will be held on Thursday and Friday, May 31 and June 1, at Texas Wesleyan University School of Law in Fort Worth.

The committee is seeking proposals for two 75-minute legal writing presentations, two 75-minute legal research presentations, and two 75-minute plenary presentations--both plenary presentations could be on legal research and legal writing combined. The times for these presentations on Friday, June 1, are here:

9:15 - 10:30--Concurrent morning sessions: one on research and one on writing.
10:45 - 12:00--Plenary morning session on research and writing.
1:15 - 2:30--Concurrent afternoon sessions: one on research and one on writing.
2:45 - 4:00--Plenary afternoon session on research and writing.

We seek proposals or suggestions for all of the sessions, concurrent and plenary. Send your proposal or suggestion to Wayne Schiess .

The deadline is January 15, 2007, but that's flexible.

Tuesday, November 14, 2006

Law review: does it improve writing? Part 1

Excerpt from a student-written seminar paper:

Contrary to first-year law students' beliefs and student law-journal editors' contentions, student law journals, specifically those at the University of Texas School of Law, are not, in their present condition, effective tools for improving staff members' legal writing. Journal staff members confirm that membership, at best, provides ample opportunity to practice citation and pointed research. The legal writing of student law-journal editors has a greater chance of improvement, but even this is limited.

Friday, November 10, 2006

A Latin phrase I like

loquendum ut vulgus, sentiendum ut docti

Speak like an average person, but understand like a learned one.

Come to think of it, Rudolf Flesch said this even better, in plain English:

[I]t's a good rule to know as many rare words as possible for your reading, but to use as few of them as possible in your writing.

Rudolf Flesch, How to Write Better 35 (Science Res. Assocs., Inc. 1951).

Plain English: lawyers already do it?

A student who has taken two courses from me told me yesterday that a lot of lawyers say they write in plain English but don't.

In their defense, there are many levels of plain English, and I'll take any efforts in that direction. But . . .

If you are writing exclusively in a legal environment, and if you are not well versed in the literature of the plain-English movement, it is easy to believe that your own writing is in plain English once you've stopped using herewith, witnesseth, inter alia, and the like.

But do more: manage your sentence lengths. Learn how to design an effective document. Strive for a crisp, vigorous, natural tone. Lean to the colloquial. Read up on the literature in the movement. Master the phrasal-adjective hyphen. Limit initials. Use the emdash. Abandon heavy connecting words. Try a contraction. And on and on.

Tuesday, November 07, 2006

Law review: the other side of the problem

A commenter writes:
  • So the first piece of advice I'd give to anonymous professor--or any professor--who doesn't like the edits she's getting from law reviews is to improve her own writing. That will make her happy because she'll receive less correction and it will make us happy because we'll be doing less correcting.
The commenter is right--so right it hurts.

When I want to read great writing, I do not read things written by law professors. When I want writing guidance, I do not consult law professors. Assisted by law-review students, law professors are the creators the second largest mass of poorly written text on earth; they are exceeded only by judges.

And so we have now added part 2 (poor writing by professors) to part 1 (inexperienced student editors) to produce the Wayne Schiess Bitterness Theory of Law Reviews:
    Smart people, who aren't particularly good writers but who think they are, submit mediocre text to be edited by smart students, who aren't trained editors. The result? Read any typical law review and the thing speaks for itself.
Note: I have had two law-review articles rejected by the mainstream, student-edited law reviews, and I'm bitter. I think the reason my pieces were rejected was that they did not contain rambling text in the footnotes, they were relatively short, and they discussed things about which the students knew almost nothing.

Monday, November 06, 2006

Law reviews: student editors again

Most law review editors in the U.S. system do not know how to edit and, in many cases, do not fully understand what they are editing. Most U.S. law-review editors are second- and third-year law students. They are typically highly intelligent and highly driven. Serving on law review is a role that falls to the best students and, although very time-consuming, is usually accepted by them as a prestigious marker of achievement within law school. These editors usually edit the articles extensively seeking to improve their written expression, and they check each and every citation for substantive and formal accuracy. Each function is of questionable importance and is questionably performed.

--Anonymous law professor

How professional writers should behave

In a recent post on The (New) Legal Writer, Raymond Ward discussed his research into the word sandbagging. After receiving criticism for using the word in a brief--his critics said the word was too colloquial--he did what serious professional writers should do, but what far too many lawyers wouldn't: He looked it up.

He consulted the Oxford English Dictionary, Black's Law Dictionary, and even U.S Supreme Court opinions. What he found was that sandbagging has a special meanning in law; it is recognized by judges and used in many court documents--including judicial opinions.

I say if more lawyers behaved this way as to all their written work, the profession as a whole would have a much better reputation for writing.

Read his post here.

Friday, November 03, 2006

Writing poorly: judge requires a make-up assignment

As a writing teacher, I have to enjoy one judge's creative sanction in a federal case from Iowa. The lawyer had submitted objections to discovery that were "boilerplate, obstructionist, frivolous, overbroad" and generally contrary to law. But as a sanction, the judge required not the payment of money but the writing of a paper. The lawyer was ordered to "write an article explaining why it is improper to assert the objections that he asserted in this case" and submit it for publication to two bar journals. St. Paul Reinsurance Co. Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).

Thursday, November 02, 2006

Writing poorly: a judge takes drastic action

One lawyer's trial brief was so poorly written that it prompted a judge to call it extremely sloppy, intentionally misleading, and "dead wrong." The judge ordered the lawyer to show cause why sanctions should not be applied under Rule 11. But worst of all, and certainly causing what I call "a long walk back to the office," the judge also ordered the lawyer to bring a supervisor to court "to discuss the overall poor quality of [the] brief in terms of content, organization, and issues not included that should have been." Hernandez v. N.Y. City Law Dept. Corp. Counsel, 1997 WL 27047 *14 n.11 (S.D.N.Y. 1997).

Wednesday, November 01, 2006

Law practice: are lawyers good writers?

When I was a full-time practicing lawyer, I thought I was a good writer. I believed I was above average within the profession. Now I see that I was quite mediocre, that I was poorly educated about the standards of high-level professional writing, and that I was ignorant of my own limitations.

Was I unique?

Many practicing lawyers today believe themselves to be good writers, above average within the profession. Are they? Or are they as I was--ignorant and uninformed?

I am not being smart here; I really want to know.