Everything that can be thought at all can be thought clearly. Everything that can be said can be said clearly.
Have something to say, and say it as clearly as you can. That is the only secret of style.
Decision makers have to focus on the substance of the dispute before them and do the important and sometimes difficult work of coming to the right decision. But after that, it remains for them to write the decision clearly and concisely. This is where style in writing takes on such a critical role. If the people reading a decision cannot figure out what it really means, the decision maker has failed.
In a previous column, I wrote about Steven Pinker’s book on writing style and the “curse of knowledge” that gets in the way of clear writing. In this column I want to focus on his more concrete points on style, especially the “arcs of coherence”. Or as he explains, “how to ensure that readers will grasp the topic, get the point, keep track of the players, and see how one idea follows from another”.
Even when every sentence is well-crafted, a succession of them can feel choppy and disjointed unless you pay attention to the connection between them. As Steven Pinker notes, we look for coherence between sentences, even when there is none. This explains the popularity of unintentional funny juxtapositions of sentences such as “We do not tear your clothing with machinery. We do it carefully by hand” or “Dog for sale: eats anything and is fond of children”.
In order for readers to follow a text they need to know the topic of the text. We’ve all read cryptic court decisions where it is impossible to know what the case is about until you get well into the decision. In addition, a reader needs to know the point of the text. Pinker notes that human behaviour in general is understandable only once you know the actor’s goals. One story (perhaps an urban legend) is of a group of tourists standing with their back to the ocean when a rogue wave appears behind them. People observing the wave, yell “wave!”, and the tourists wave. Context is important.
The only writers who should leave the point of their text until the end are mystery writers. There is a tendency among some decision makers to resist setting out conclusions near the beginning of a decision in the mistaken belief that do so will somehow show that they prejudged the outcome. In other words, they are setting out their reasoning process as it unfolded. Although that is often the way we reason, it is not the way we read. Pinker notes that writers should strive to inform rather than dumbfound, “and that means that writers should make it clear to their readers what they are trying to accomplish”.
Joseph Williams, in an excellent book on style (Style: Toward Grace and Clarity) describes a “point” as a sentence or two on the page that encapsulates some clear statement that we could recognize as the most important sentence in the paragraph.
Pinker also writes about the importance of balance and proportionality in writing: “the amount of verbiage one devotes to a point should not be too far out of line with how central it is to the argument”. Some of Pinker’s discussion on this issue is aimed at those writing persuasive texts – suggesting, for example, that a writer should focus on the evidence that supports his or her position. A decision maker needs to address all the evidence in a proceeding, of course. But the point on proportionality is a good one generally. A decision does not always need a long procedural history section, for example. Unless, of course, that procedural history is central to the decision.
Pinker spends a lot of time dissecting some passages from a book by the well-known military historian, John Keegan. He asks how a seasoned author such as this could serve as a model of incoherent writing. He concludes that most of the problem comes from the expertise that made him qualified to write his books. He became a victim of professional narcissism, confusing “the History of Warfare with the History of a Man in My Field Who Gets Quoted a Lot about Warfare”. He “was so laden with erudition that his ideas came avalanching down faster than he could organize them”.
There is a big difference between a coherent passage of writing and a flaunting of one’s erudition, a running journal of one’s thoughts, or a published version of one’s notes. A coherent text is a designed object: an ordered tree of sections within sections, crisscrossed by arcs that track topics, points, actors, and themes, and held together by connectors that tie one proposition to the next. Like other designed objects, it comes about not by accident but by drafting a blueprint, attending to details, and maintaining a sense of harmony and balance.
Joseph Williams also notes that novices in a field read its professional prose and “will predictably try to imitate those features of style that seem most prominently to bespeak membership, professional authority.”
C. Wright Mills, an American sociologist writing in the 1950s on “Intellectual Craftsmanship” (an appendix to his book, The Sociological Imagination) captured nicely the tension in academic writing that can equally apply to legal writing. Writing is a claim for the attention of readers, but is also a claim of the writer for the status to be worthy of reading. The young (or new) academic, he notes, because of a lack of public profile, often puts the claim for his/her own status before the claim for the attention of the reader.
Desire for status is one reason why academic men [and women] slip so readily into unintelligibility. And that, in turn, is one reason why they do not have the status they desire. A truly vicious circle — but one out of which any scholar can easily break.
In a nice turn of phrase, easily adaptable to the legal world, Wright Mills notes that to “overcome the academic prose you have first to overcome the academic pose”. The first step is to answer these three questions he sets out:
(1) How difficult and complex after all is my subject?
(2) When I write, what status am I claiming for myself?
( 3 ) For whom am I trying to write?
Some decisions are complex, although complexity often depends on what the reader brings to the text. Writing for the parties, especially the losing party, is a mantra of many decision writing courses. Of course, there are many audiences for decisions, including the parties. However, the important value underlying the audience question is the point about writing for accessibility. Judgments need to be accessible to the public generally, since knowing what the law is (and how it is interpreted) is an important aspect of the Rule of Law. In that sense, all legal writing is complex since it involves explaining legal principles to lay audiences.
Joseph Williams says we need to understand three things about complex writing:
- it may precisely reflect complex ideas,
- it may gratuitously complicate complex ideas,
- it may gratuitously complicate simple ideas.
We all write differently — for some, it is a question of getting it all down on paper (real or virtual) and then organizing it. For others, an outline of the decision is the first step. The main point is to revise, revise, revise. As James Raymond has stated:
A well-written judgment is as smooth as a grape. There is nothing extra. Once you reduce it to essentials and organise it coherently, you are ready to revise and polish for style.
Even competently written judgments can be revised and polished for style. Joseph Williams takes a perfectly acceptable (from a law school graduates’ perspective) portion of a judgment by U.S. Supreme Court Justice Day O’Connor and makes it almost as smooth as a grape:
Because the individualized assessment of the appropriateness of the death penalty is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence, I agree with the Court that an instruction informing the jury that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” does not by itself violate the Eighth and Fourteenth Amendments to the United States Constitution. [California v. Albert Greenwood Brown, Jr., no. 85-1563]
When a jury assesses whether the death penalty is appropriate in individual cases, it must not respond to mitigating evidence emotionally but rather inquire into the defendant’s moral culpability. I therefore agree with the majority: When a court informs a jury that it “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling,” the court has not violated the defendant’s rights under the Eighth and Fourteenth Amendments.
Advice for better writing is difficult, because writing is such a personal activity. As observed by Professor Michael Billig in his book, “Learn to Write Badly: How to Succeed in the Social Sciences”:
A few readers may take heart from what I say; a handful might even try to change how they write; many more readers will find reasons to disagree with me, especially in relation to their favourite big words. The vast majority of social scientists, however, will not read this work, or even know of its existence, and they will carry on as they are.
However, books like Steven Pinker’s and Joseph William’s can at least get conscientious decision writers thinking about how they can make their decision clear and accessible even if those decisions are not as smooth as grapes.