Copyright (c) 2010 All rights reserved. http://works.bepress.com/lance_long Recent documents in Lance N. Long en-us Sun, 03 Oct 2010 01:31:05 PDT 3600 http://works.bepress.com/lance_long/2 http://works.bepress.com/lance_long/2 Fri, 01 Oct 2010 18:02:10 PDT The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related to the outcome of an appeal in a statistically significant manner. Our study did show, however, that the opinions of judges and justices are less readable than lawyers’ briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed. Ultimately, we conclude that readability, as determined by the Flesch Reading Ease scale, is a non-issue for legal writing at the appellate level. Although readability did not appear to be related to outcome, there was a statistically significant relationship between the readability of the courts’ majority and dissenting opinions. Dissenting opinions are decidedly less readable than majority opinions. Lance N. Long Civil Law Courts Judges Legal Analysis and Writing Legal Profession Practice and Procedure http://works.bepress.com/lance_long/1 http://works.bepress.com/lance_long/1 Wed, 02 Apr 2008 13:20:01 PDT Although scholars have generally found that overusing intensifiers (words such as “clearly,” “obviously,” and “very”) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an “offending” party. But--and this was an unexpected result--if an appellate opinion uses a high rate of intensifiers, an appellant’s brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use “clearly,” and “obviously” more often. These results could be interpreted several ways. It could be that overusing intensifiers actually renders a brief suspect and subject to increased skepticism by appellate court judges. Alternatively, it could be that the overuse of intensifiers is accompanied by violations of other writing conventions that further affect the credibility of the brief. Or, it could simply be that appellants or appellees with difficult arguments (arguments that they believe they are likely to lose) tend to lapse into an intensifier-rich mode of writing in an attempt to bolster the perceived weaknesses of an argument. All of these factors may combine to produce the result. Of course, since no causal relationship is shown, it could be a yet unidentified factor. At the very least, the studies suggest the need for further research and a fruitful source of data for performing such research. Lance N. Long Courts General Law Judges Jurisprudence Legal Analysis and Writing Legal Profession Practice and Procedure