Most of this book focuses on the word legal in “legal writing” — challenges such as the art of building arguments and of weaving a client’s facts into a story that compels a favorable legal conclusion.
This chapter, however, focuses on the writing itself. It synthesizes many of the principles reflected in the examples that this book reprinted.
As you read those examples, you probably liked some and disliked others.
Some examples probably seemed crystal clear to you. Others forced you to work harder. And if you’re like most readers, you preferred the easier ones. As Daniel Kahneman (winner of the Nobel Prize in Economics) has observed, our brains have two “Systems” for processing information. “System 1” handles the easy tasks, and we’re happy when we use it. We feel smart, life is easy, we can relax. In the language of psychology, “cognitive ease is associated with good feelings.”1 In other words, we like it when our brains aren’t overworked.But watch out when someone forces you to use System 2 — or when you force a judge to use it. System 2 deals with the tough stuff. When System 2 is triggered, your pulse quickens. Your breathing changes. Your muscles tense. Activating System 2 causes you to become “vigilant and suspicious,”2 and it creates a risk that you’ll “overload” your brain.3 System 2 usually makes readers ornery.
But this Nobel Prize-winning theory is, as one might suspect given Kahneman’s findings, oversimplified. The two Systems actually lie on a spectrum, as reflected in Table 1.
Table 1. Spectrum of Sentence Complexity
Table 1 hints at the most important principle about how to convey your ideas: your biggest writing challenge when drafting a brief or motion is to translate and synthesize your client’s story and position into absorbable, engaging prose. Or, to put this point in Kahneman’s language, you need to help judges use System 1 (simple, happy) rather than System 2 (complicated, stressful). Your main job as a stylist is to ensure that readers grasp what you’re saying. But you can’t oversimplify the case or you’ll omit critical information, as the “Very Easy” sentence in Table 1 demonstrates. So, while you’ll know that you’ve become a competent lawyer when you can grasp complicated legal doctrines, you’ll know that you’ve become a great legal stylist when you can explain complicated legal doctrines and complicated fact patterns precisely, simply, and persuasively.