Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, February 10, 2018

Evidence-based legal writing: Is it possible?

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Feel a sore throat coming on? Better go to the doctor. But will it help? If you haven't yet read the many articles explaining how medical practices are often backed by zero evidence that they work, spoiler warning.

A 2013 study published in the Mayo Clinic Proceedings reviewed 100's of journal articles testing clinical practices across the nation. The result? "146 studies []proved or strongly suggested that a current standard practice either had no benefit at all or was inferior to the practice it replaced." An example included telling breast-cancer survivors to stop lifting weights, when in reality, this exercise alleviates symptoms. Dive down this rabbit hole and you might start wondering why we even bother going to the hospital when we're sick. 

How can a doctor treat patients based on nothing more than gut intuition and that "it's always been done that way"? For one, tradition: we have always treated a sickness with that practice. For another, researchers theorize that physicians may prescribe treatments because they are "bio-plausible,” in other words, they intuitively seem like they should work. For example, a cardiologist might insert a stint in a narrowed artery—even if studies show that the type of narrowing can’t be helped with a stint—because inserting a stint into a clog is common sense. 

These problems of practicing from the gut and tradition are even worse for us lawyers. The practice of law, particularly legal writing, is rife with formalisms and conventions—many lacking not only evidentiary support, but any logical basis whatsoever. Why do we include in our motions paragraphs of useless drivel about every procedural event that has ever occurred in the life-cycle of the case? Why do we write a treatise about the summary judgment standard in our motions, knowing not even the law clerk will read it? Why do we call out the other side for petty mistakes when all evidence suggests that this just makes us less sympathetic to the judge?

One reason is probably the same as it is for doctors: intuition. And like doctors, sometimes there is good reason to ignore our intuition as lawyers. Like when the other side makes a silly argument and our intuition says: "that is so wrong, I must respond to it." If an argument is so wrong, you probably should not be wasting the judge’s time with it. Cognitive science tells us that you are usually better off sticking to what matters. 

Also like doctors, we lawyers are creatures of tradition. But unlike medicine, there are few mechanisms in the legal system to tell us when we are doing things wrong. You can draft a bad brief and still get paid by your client. Heck, you can draft a bad brief and still win your case. Neither the judge nor your client is likely to call you out for writing problems. Indeed, we aren’t a great profession at giving feedback in the first place. Lawyers usually comment on others' writing only if it's really bad or really good. And as far recognizing problems that need to change on our own, that is always tough. As Warren Buffet said, "What the human being is best at doing is interpreting all new information so that their prior conclusions remain intact.” 

Granted, it's harder to empirically test which legal arguments work better than others, or whether the oxford comma is all that important in a brief. But consider that persuading through legal writing can be at least some part science. Thanks to phenomenal research within the legal writing community (and otherwise), we are learning more about how humans process complex information. We are learning more about what writing works. 

Joe Kimble, one of the leading legal-writing minds out there, has a great article collecting some of the best studies on point—backing up plain language writing practices like using simpler sentences and active voice.

Similar evidence-based work has been around for decades, and the science is only improving. A great example is a phenomenal book (by two fantastic legal writing professors) applying cognitive science to legal writing, backing up a number of writing practices like chunking information. Another, by Jean Sternlight and Jennifer K. Robbennolt, applies psychology to various aspects of legal practice, including legal writing. And this does not begin to touch on all of the exciting work being done to identify writing and persuasion practices that work. 

Even without the empirical evidence, you can be better about teasing out what works rather than blindly following intuition and tradition. For one, pay careful attention to feedback from others. 

Two types of feedback may be particularly helpful. First, ask your editor to pick only one or two big problems in your document—things you do repeatedly. By focusing your editor on just a couple things, they will pay closer attention (and give you something manageable to work on fixing). Second, ask for feedback on readability, not just suggestions for how to change your writing. This will prevent you from rotely accepting changes, and instead, forces you to learn to fix the problems yourself. Finally, be thoughtful about when and where you ask for feedback. Save it for writing that you put some real work into—and make sure you ask at a time when your editor isn’t too busy.

You can also gather evidence about which practices work by writing more, and in different venues. Say, a blog post. You might find it easier to get feedback and speaking to non-legal audiences will improve your ability to connect with others. Another sign that a practice works is if fantastic writers use it. So steal practices from the good writers in your life. 

Take the time to get more eyes on your work, ask for more feedback, and pay attention to what works—you will start to parse the practices that work from those that don’t. Above all, at least question why you use the writing practices that you do.  

Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here

http://lawprofessors.typepad.com/appellate_advocacy/2018/02/when-you-go-to-the-doctor-the-treatment-you-receive-may-be-nothing-more-than-a-placebo-scary-summarize-some-interest-medi.html

Law School, Legal Profession, Legal Writing | Permalink

Comments

For more on this topic, see Catherine Cameron and Lance Long, The Science Behind the Art of Legal Writing https://www.amazon.com/Science-Behind-Art-Legal-Writing/dp/1611630142

Posted by: Jennifer Romig | Feb 11, 2018 7:34:25 AM

Thanks for the comment Jennifer--I am grabbing their book now!

Posted by: Joe Regalia | Feb 11, 2018 6:04:26 PM

Just finished their book--it was great! The research on intensifiers was a new one on me. Very easy to read, too.

Posted by: Joe Regalia | Feb 18, 2018 6:52:45 PM

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