Monday, July 17, 2017

Social Psychology and Legal Writing: Part I

*This is the first of a two-part post based on the research of Dr. James W. Pennybaker.*

Dr. James W. Pennybaker
A Twitter friend recently introduced me to the work of Dr. James W. Pennybaker, a social psychologist who researches the relationships between people’s language and their psychological states. Dr. Pennybaker’s findings have interesting implications in legal writing. But first—some necessary background.

Dr. Pennybaker developed a computer program, Linguistic Inquiry and Word Count (LIWC), to analyze the psychology behind what we write. Through his research, Dr. Pennybaker has learned that the words a person uses and the frequency with which the person uses them provide insight into the psychology of the speaker.

Specifically, Dr. Pennybaker is interested in function or style words—pronouns, articles, prepositions, and a few other categories of small words. According to Dr. Pennybaker, these words, which most of us barely notice, account for 60% of the language we use. These stealth words can tell us about whether a person is organized, emotionally stable, social, and many other things.

And Dr. Pennybaker’s research shows that men and women, the old and the young, and people of different socioeconomic statuses use language differently. Specifically, Dr. Pennybaker has discovered that men tend to use more big words, nouns, and words per sentence than women. Women, on the other hand, use more personal pronouns, verbs, and hedge phrases (such as “I think”) than men. Further, according to Dr. Pennybaker, people tend to change their language based on setting. In formal settings, for example, people speak with fewer pronouns, more articles, and fewer social words; that is, the research shows that women adjust their language in these settings to talk like men.

Dr. Pennybaker has also found that our language use changes as we age. Younger writers use personal pronouns and past-tense verbs at higher rates than older people, who use more articles, nouns, prepositions, and cognitive words that reflect insight.

Finally, Dr. Pennybaker has found a “sound of power”—that those with power and status (generally, men, older people, and those of higher socioeconomic status) use more noun clusters and fewer pronouns and verbs. The reasons for these findings aren’t entirely clear, but Dr. Pennybaker suggests that those in power tend to focus on tasks (they are, after all, the deciders) while those with less power tend to pay attention to others (e.g., the deciders).

Given that background, I used Dr. Pennybaker’s website, secretlifeofpronouns.com, to analyze my own writing.

Dr. Pennybaker’s first writing prompt, a perceptual style test, required me to spend five minutes describing a picture. According to Dr. Pennybaker’s research:

I scored above average on functional thinking, tactile sensitivity (appreciation of texture, contour, and dimension), contextual thinking, and visual sensitivity (colors and styles).

And, unsurprisingly, I scored above average on verbal thinking. According to Dr. Pennybaker’s research:

“[I] devoted more time than most describing the words and word fragments. Words grab [my] attention and [I] view them as important anchors to [my] reality.”

That’s certainly true!

The second prompt, a thematic apperception test, required me to spend ten minutes writing a fictional story based on a different picture. My results reflect a higher-than-average need for achievement (unsurprising), use of big words (also unsurprising), and positive emotions. My results show a lower-than-average need for power and negative emotions.

I’m a pretty self-aware person (I think!), and both I and the people close to me agree that the results of these two tests accurately reflect my personality.

I also used Dr. Pennybaker’s other website, analyzewords.com, to analyze my @ladylegalwriter tweets. The results are interesting. According to Dr. Pennybaker’s program:

My emotional style is only of average upbeatness (I’m a little surprised by this.)

My social style is highly personable, plugged in, and arrogant/distant (Maybe I am?)

My thinking style is highly analytic (no surprise there).  

While I was at it, I also analyzed tweets from Barack Obama (@barackobama), who, according to Dr. Pennybaker’s program, has a very upbeat emotional style but only average style in personability and analytics.

Finally, I looked at tweets from lawyer Jeffrey Toobin (@jeffreytoobin) who, Dr. Pennybaker's program says, has a highly upbeat emotional style and a highly personable but spacey social style.**

Dr. Pennybaker notes that many factors that cannot be controlled outside a research setting (distractions, level of tiredness, etc.) may affect the results of all his tests. Thus, cautions Dr. Pennybaker, the results should be taken with a grain of salt.

But the outcome of my writing assessments appears to accurately reflect some of my psychological strengths and weaknesses and has gotten me thinking about the implications of Dr. Pennybaker’s research in legal writing. I’ll discuss this in my next post.

**Caveat: I noticed is that the program only analyzes the tweeter’s most recent 1,000-1,500 words or so and factors in retweets, both of which could skew the results.

Friday, June 23, 2017

Dating Tips

While dates can be very important in some cases (e.g., where the statute of limitations or a question of whether a party was timely served with process is at issue), in many cases, they are irrelevant. As Ross Guberman notes in Point Made, “[f]ewer things are duller than a paragraph stuffed with dates.”

I call writers who draft paragraphs “stuffed with dates” disinterested historians. These disinterested historians begin or end sentence after sentence with “on X date . . . .”

Using time markers rather than specific dates makes a paragraph flow. Words and phrases such as

·      Then
·      Nearly two years later
·      After Smith and Jones signed the contract
·      Within a month

add context when the specific dates aren’t necessary for resolution of the issue and make the statement of facts flow more like a story.

A good example comes from brief in support of a TRO filed by Neal Katyal in litigation over President Trump’s second executive order banning people from certain countries from entering the United States. Though he includes some key dates as well, Katyal employs this technique in outlining the events leading up to the travel ban:

Then-candidate Donald Trump made it crystal clear throughout his presidential campaign that if elected, he planned to bar Muslims from the United States. Shortly after the Paris attacks in December 2015, Mr. Trump issued a press release calling for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” When questioned about the idea shortly thereafter. . . .

Later, as the presumptive Republican nominee, Mr. Trump began using facially neutral language to describe the Muslim ban. . . .

Throughout the campaign, Mr. Trump also made clear that his plans extended to disfavoring Muslim refugees while favoring their Christian counterparts.

After his election, the President-Elect signaled that he would not retreat from his Muslim ban.

Sometimes dates are critical. When they are, of course the writer should include them. But when they aren’t, writers can employ this excellent technique to tell the client’s story in a more interesting and readable way.

Saturday, June 10, 2017

Why Does Comey Get an “A” in Legal Writing for His Written Testimony?

I am thrilled to offer this guest post by Kirsten Davis, J.D., Ph.D, Professor of Law and Director of the Institute for the Advancement of Legal Communication at Stetson University College of Law in Gulfport, Florida.  She has taught legal writing for 17 years.  She is the author of My Legal Writing©, a mobile application for legal writers.


During the questioning of former FBI Director James Comey at his Intelligence Committee hearing on Thursday, Idaho Senator James Risch complimented Comey on the quality of his written testimony.  Risch praised the document, which was provided to the New York Times before the hearing, for being “clear,” “concise,” and “as good as it gets.”  Of particular interest to legal writers is Risch’s suggestion that Comey “probably got the A” in his law school legal writing class.

James Comey (Getty)

Teachers of legal writing know that good informative writing—the kind of writing that Comey was doing—is not an accident; it results from the writer’s specific choices about how to present information to the audience.  So, what choices does Comey make in his writing that makes it worthy of Risch’s compliment?  What makes Comey an “A” legal writer?

He uses an introductory paragraph.

A good introductory paragraph helps the reader understand the document’s goals and limitations.  In addition, the paragraph often previews the document’s content.

Comey starts his document with an introductory paragraph telling the reader what the memo is about: his “interactions with . . . President Trump on subjects that [he] understands are of interest to [the Committee].”  Then, he tells the reader the document’s limits, noting that he does “not include[] every detail” but, “to the best of [his] recollection, gives the information he thinks “may be relevant to the Committee.” With these two moves, Comey tells readers the purpose of and constraints on the document.

Now, even “A” writers can improve their writing, and there’s room for improvement in this intro paragraph. To improve his introductory paragraph, Comey could have previewed the testimony content.  He might have said, for example, that he organized the document by date and around meetings and phone calls he had with the President.  Providing this kind of “roadmap” can help the reader construct a mental outline of the anticipated information and then allow the reader to fill in the information as it is given. In other words, a good intro paragraph should “tell’em what you’re going to tell’em.”

He organizes his information in chronological order and signals this structure.

Comey’s document is essentially a factual narrative; he conveys the facts about a series of meetings and conversations.  Thus, Comey’s readers will expect a time-organized narrative structure.  Because Comey organizes the events chronologically, readers will more easily understand the facts.

Key here, however, is not just that Comey organizes the document chronologically; rather, he signals this organization to the reader.  Comey’s headings signpost this large-scale chronological organization.  The headings show that the earliest event is a “January 6 Briefing” and the last an “April 11 Phone Call.”  In between, Comey’s headings move from one event to another, specifically stating the date for each.  Comey’s headings leave no room for his reader to wonder about how his document is organized, and the reader knows what to anticipate as the story progresses.

James Comey and President Donald Trump (Getty)
Comey’s writing style shows that he intends to tell a story of the events, from beginning to end.  Comey’s very first sentence in his chronology starts with an equivalent of the traditional story-starter, in the beginning.  Comey writes, “I first met then-President-Elect Trump on Friday, January 6 . . . .”  And his last sentence effectively says “The End”; Comey writes,“That was the last time I spoke with President Trump.” In between, he uses words and phrases consistent with chronological organization.  Comey writes, “[h]e called me at lunchtime that day and invited me to dinner that night”; “[a] few moments later, the President said”; and “[s]hortly afterwards, I spoke with [the] Attorney General.” (Italics added.)  

Even when Comey shifts away from the forward-moving chronology, he signals the shift.  At one point, he signals a backward move:  prior to the January 6 meeting.” (Italics added.). At another, he reminds the reader that writing memos had not been his “practice in the past.”  (Italics added.). Comey’s signposts ensure that the reader is not confused about the story’s sequence.

He uses concrete details and focuses on actors and actions.

Comey demonstrates how details can be used for clarity; when readers can visualize events, they can better understand them. For example, Comey describes in detail how meeting spaces were arranged:  “He [President Trump] sat behind the desk and a group of us sat in a semi-circle of six chairs facing him on the other side of the desk.”  Comey offers, by name, other individuals involved and describes what they were doing: “Reince Priebus leaned in through the door by the grandfather clock . . . .”  In another passage, Comey paints a picture of his experience:  “I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed.”  Comey’s descriptive details allow his readers to see these events in their minds’ eye.

Comey uses action verbs and step-by-step narratives to conjure images of events.  For example, instead of simply saying that he was “left alone” with the President in the Oval Office, he methodically describes how he was left behind:

The President signaled the end of the briefing by thanking the group and telling them all that he wanted to speak to me alone.  I stayed in my chair.  As the participants started to leave the Oval Office, the Attorney General lingered by my chair, but the President thanked him and said he wanted to speak only with me.  The last person to leave was Jared Kushner, who also stood by my chair and exchanged pleasantries with me.  The president then excused him, saying he wanted to speak with me. 

(Italics added.)

Comey uses visually evocative action verbs—signaled, lingered, thanked, stood, exchanged, excused—to demonstrate what happened. By using verbs that are both visually evocative and precise, Comey allows the reader to imagine the events, making the writing easier to understand.

Comey’s choice to put action verbs immediately after the actors in sentences makes his informative writing even more clear and concise.  For instance, Comey writes,“The conversation then moved on, but he returned to the subject near the end of our dinner.” (Italics added.) 

But what if Comey had written it like this:  “The conversation then moved on, but the subject was returned to by the President near the end of our dinner.”  The second sentence is both longer and harder to understand. Why?

The reason is the first actor-action clause, he returned, is written in the active voice and puts the actor and the action together, near the beginning of the sentence, and in the order the reader expects.  The second clause, was returned to by the President, is written in passive voice, inverts the order of the action and the actor, and couples the action verb, returned, with a weak being verb, was.  This phrasing makes the events harder to visualize, and the sentence takes longer to read.

He signposts observations and interpretations so the reader can distinguish between them.

Senator James Risch
Importantly, clear writing about facts demands that the reader can easily tell the difference between a writer’s interpretation of events and the writer’s statements about what he has observed.  Senator Risch implied that Comey’s document did this well when he suggested that investigative reports must distinguish between “exactly what happened” and the writer’s “rendition of it.”

Although it’s never possible to completely divide one’s observations from one’s interpretation of events, we can think of observations as those things that can be taken in through the senses—hearing, touch, taste, sight, and smell—and interpretations as the meanings we assign to things we observe. 

For example, an investigative report can say that a police officer observed someone smelling of alcohol, having red eyes, and slurring her speech.  Conversely, that report could interpret those observations and conclude the person was “drunk.” Senator Risch reminds us that investigative report readers—and readers of all fact-focused documents—typically expect to read mostly observations and need to know specifically when the writer makes interpretations based on those observations.

Comey’s written testimony cues distinctions between observation and interpretation.  First, as Senator Risch noted, Comey uses quotation marks to separate Comey’s paraphrases from his quotations.  When Comey attributes specific words to others, he puts those words inside quotation marks.  Comey writes:  He then said, “I need loyalty.” (Quotation marks by Comey; italics added.)  But, Comey does not use quotation marks when he is paraphrasing what others have said.  Comey writes, for example: [T]he President returned to the salacious material I had briefed him about on January 6, and [he] expressed his disgust for the allegations and strongly denied them.  (Italics added.)  Although a simple and straightforward technique, the consistent use of quotation marks ensures that the reader knows the difference between exacts words and the Comey’s paraphrase.

Moreover, when Comey intends to tell the reader about his interpretation of events rather than about his observations, Comey signals the move.  For example, he writes:  I assumed there would be others [at dinner]”; “My instincts told me that the one-on-one setting [was important]”; “I had understood the President to be requesting that we drop any investigation . . .”; “I did not understand the President to be talking about the broader investigation into Russia . . . .”  (Italics added.)

Each of the italicized phrases tell the reader that these sentences convey Comey’s interpretation of events.  Comey’s statement, for example, that he “assumed there would be others [at dinner]” is very different from the statement that “someone told him there would be others at dinner.”  When Comey tells the reader he “assumed” this fact, he makes his writing clearer by distinguishing interpretation from observation.

He uses language at the beginnings of  sentences to show how his ideas connect together.

A good writer knows that readers need to understand the relationships between the writer’s ideas.  One way to signal those relationships is to use connecting phrases at the beginnings of sentences.  For example, the phrase “for example” at the beginning of this sentence expressly shows that this sentence is a specific illustration of the ideas in the preceding sentence.  In addition, the words “in addition” show that this sentence will add another point that is related to the point in the preceding sentences.  Get the idea?

Comey’s memo effectively uses connecting language at the beginnings of sentences.  Consider, for example, this excerpt from Comey’s written testimony:

We also agreed that I would do it alone to minimize potential embarrassment to the President-Elect.  Although we agreed it made sense for me to do the briefing, the FBI’s leadership and I were concerned that the briefing might create a situation where a new President came into office uncertain about whether the FBI was conducting a counter-intelligence investigation of his personal conduct.

(Italics and bold added.)

The clause “although we agreed it made sense for me to do the briefing” connects the sentence pair in the above example. It uses “although,” positioned right between the first and second sentences, to indicate that the second sentence will introduce a limitation on or conflict with the information in the first sentence.  Thus, the reader is cued to expect new information that creates a tension.  And, in fact, that is what the reader gets in the second half of the second sentence.

Here’s another example:

The President went on to say that if there were some satellite associates of his who did something wrong, it would be good to find that out . . . . In an abrupt shift, he turned the conversation to [the] FBI Executive Director.

(Italics and bold added.)

The phrase, “in an abrupt shift,” signals to the reader that a dramatic change in the conversation occurred.  By placing this phrase between a description of the earlier conversation and the later one, the reader can more clearly understand the disjointed way these events relate.  Conversely, imagine instead that the second sentence had read, “He turned the conversation to the FBI Executive Director in an abrupt shift.”  The placement of the phrase at the end of the sentence would fail to effectively contrast the status quo with the dramatic change, and the relationship between events would be less clear.

What can legal writers—all informative writers, really—learn about writing from Comey’s written testimony? 

  • Good informative writing enables the reader to quickly, easily, and accurately understand an informative document’s content.
  • Introductory paragraphs can help the reader understand the document by setting out its purpose and limitations and previewing what will follow the intro paragraph.
  • Informative documents should be organized to meet readers’ expectations.  If the writer is telling a story, for example, the writer should anticipate that a reader will expect and best understand a chronology.  A writer should make choices that signpost the structure.
  • Documents that include details and  action verbs help the reader visualize events and more easily understand them.
  • Generally, sentences are more concise and understandable if they refer to actors and actions, in that order, near the beginnings of sentences.
  • Because readers need to understand the relationship between ideas, writers can use the beginnings of sentences to establish those relationships.

Wednesday, May 31, 2017

Book Review: That's Why They Call It Practicing Law

I recently came across a book by attorney David Kempston entitled That’s Why They Call It Practicing Law. In Practicing Law, Kempston argues that a successful law practice must be built around customer service and that good customer service leads to strong client relationships. He offers more than twenty tips to help lawyers offer good customer (client) service. Some of my favorite tips in Practicing Law include:

  • Set realistic expectations (about the outcome and value of the case, about communication) but be available and keep the client informed;
  • Listen (rather than talk, prepare to talk, or work on other tasks);
  • Be kind and act like you care (according to Kempston, even an acknowledgment, such as “I’m sorry you have to deal with this,” goes a long way);
  • Don’t procrastinate and be prepared;
  • Communicate clearly; and
  • ‘Fess up when you mess up (a very important tip for new lawyers)

Practicing Law is chock full of practical advice about lawyering that's delivered in a sometimes humorous, sometimes thought-provoking way. Kempston offers many “war stories” from his own practice (including one in which he literally fell out of his chair during a hearing) that will make new lawyers, in particular, feel better about some of their own foibles.

I like Kempston’s inspiring quotes too. He pulls from a variety of sources, including Tolkien (“It’s the job that’s never started as takes longest to finish.”), the Bible (“The fool multiplies words.”), and Cool Hand Luke (“What we’ve got here is a failure to communicate.”).

Practicing Law is an excellent gift for young lawyers just starting out and a great read for lawyers who work as solo practitioners or at small firms and those feeling overwhelmed and looking to regain control of their practices. I highly recommend this quick, thoughtful read!

That's Why They Call It Practicing Law is available on Amazon.