Seizing Authority: Write Well or Get Out

Eugene Volokh argues that a well-written legal argument doesn't merely have a logical persuasive effect, but creates what he calls an authoritative bubble.

Rightly or wrongly, something that seems to be a thoughtful written argument by a respectable professional tends to have more than just a logical persuasive effect — it also has a psychological effect. If the argument is well-crafted, the reader is inclined to credit not just the factually verifiable claims in the argument (whether about fact or about precedent), but the analogies and the speculation in that argument, too.

The reader, even a judge (who is therefore of higher status than the writer), is likely to subconsciously treat the argument as having some authority. This usually won’t let the author get away with total nonsense, or mischaracterization of the facts and the law (once that’s exposed). But when the argument involves judgment calls — is the case really that similar to that precedent? what are the practical effects of a ruling likely to be? — the reader will be inclined to be moved by the argument even beyond what the purely logical force of the argument justifies.

The more general argument is that poorly written briefs impair a lawyer's "credibility," which Eugene defines as dishonesty or factual accuracy.  My definition would be somewhat different, more along the lines of general believability and trustworthiness. I trust that a person knows what he talks about when he can write well about it.

Eugene's bubble runs more along these lines, that the solid writer creates a psychological impression of authoritativeness on the subject of his writing, and is thus sufficiently trusted as an authority that he can both go further with his argument and his thoughts are accepted with lesser scrutiny. 

An unnamed, relative rookie judge responded to Eugene's post with his views:

As a criminal law trial attorney I thought it advantageous to write in a way that made it easy for a judge to rule in my favor; succinct, good authority, concise arguments. I tried to make every submission under 7 pages. I can count on one hand in 28+ years as a trial attorney reading an opponent’s brief that impressed me or, as you put it, carried a sense of authority.

I had never thought about it in terms of, “authority,” but I think it’s an apt description. The citation to a statute or case was usually on track, but everything else seemed almost always to be the written counterpart to a Jackson Pollok painting. Terrible sentence structure, typos, misuse of punctuation, facts not incorporated effectively, hyperbole, the list goes on. Good, persuasive written arguments do carry an authoritativeness that, for me, equates to persuasiveness. And it often is an unconscious appreciation, you’re persuaded without understanding why.

As a judge, admittedly with only 20 months experience, I have yet to read anything that has impressed me. Some of it is just plain, well, garbage. For years judges in private conversations would extol the superiority of civil law attorneys to me but I have yet to see much in the way of praiseworthy writing there either.

Naturally, a reader smacked back from the safety of an anonymous internet comment,

Holy pretentiousness Batman! Do you have an ego or what.

This reaction, aside from ignoring the nature of what it means to sit as a judge, reflects perhaps the most dangerous threat to good writing, maybe even good lawyering. Yes, the judge's thoughts, that he was a wonderful writer and every other lawyer in his 28 years of practice or has come before him in the past 20 months sucks, is outrageously arrogant. But he is now the judge. He now decides whether you win or lose. By definition, the effectiveness of every lawyer who comes before him is determined by his reaction to their authoritativeness, or lack thereof.

It takes a very long to time to fully appreciate this aspect of jurisprudence.  I can still recall Myres McDougal tell this to the class, and warning us not to get too wrapped up in the details as we wouldn't come to appreciate it for many years. Just listen, he said. Some day, you will understand.  He was right, but it took a long time.

Self-assessment of the quality of our legal work is fraught with danger. The distinction between efficiency and effectiveness has been so horribly blurred that we have great difficulty realizing that our satisfaction with the sufficiency of our effort is utterly irrelevant. We pat ourselves on the back for a job well done and feel self-satisfied. Other than the fact we lost, we were great.  After all, didn't our mother tell us to do our best, and that's all anyone could ask of us? 

Mother was wrong. If our best is inadequate, we have two choices. Get better or get out. And the person who determines whether our best is inadequate is the judge, no matter how crazy, arrogant or wrong he may be.

Almost all lawyers in the first five to ten years of practice reject this notion without even realizing it. They glow with the confidence of youth, Certain that they not only know what they're doing, but that they're doing it well.  They know this because they've decided it about themselves, and to them, that's the only bar they need to meet.

Somewhere about the tenth year of practice, most lawyers come to the realization that they aren't nearly as brilliant as they thought. They don't' necessarily reach this epiphany willingly, but by reaching a point in life where one surveys one's accomplishments and failures, and those with sufficient metacognitive abilities realize what they could have done better if they had only known.

Over the next 20 years (and I limit it to 20 as that's as far as my experience stretches), you struggle to achieve the bubble of authoritativeness.  You will never be as confident as you were in those first ten years because you know too much. 

This is one of the reasons so many lawyers' aspirations change from Clarence Darrow to survival, realizing that they weren't before, and will never be, a great lawyer. Instead, they turn to making a living and, for the better of the bunch, not screwing up too badly.  They give up trying to be better.  It won't happen.

As a group, lawyers have never lacked for unwarranted self-esteem. But if it's worse now, since everybody's a winner, then the earlier one reaches this epiphany, the better off everyone will be, whether as an effective lawyer or coming to the realization that you won't be Clarence Darrow either.

 

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