Write with the brain in mind
Cognitive science concepts can help writers organize their texts.
Imagine a random, unstructured collection of words like the following:
Satisfied bother vegetable lead orange rub remind age welcome difference extreme sanctuary eavesdrop hostage portion.
Each word in that “sentence” provides no clue about what words will follow. That is an extreme example of what disorganized writing feels like to the reader.
Though even the most poorly drafted legal documents provide some structure for the information they convey, that structure is often insufficient for the reader to confidently follow along and know where they stand in an argument or narrative. Consider the following paragraph from a brief:
At p. 8 of Sprint's petition, Sprint’s counsel has patched together colloquy between the Court and Plaintiff's counsel that misrepresents the points that Plaintiff’s counsel was making to the Court. Attorney Franklin stated at AE 668, line 13, et seq. as follows: “You have to say, ‘ok, I'm going to select the 500 minutes at $ 50’ or ‘this plan at this’. And there is no indication by Sprint that these minutes are not usable all usable.” Attorney Franklin stated at AE 668, line 23, et seq.: “Every customer, including Mr. Phillips, received this service plan guide as part of the subscriber agreement. It’s part of the agreement.” At AE 668-669, the Court asked counsel for Plaintiff whether or not he should have a class that the Plaintiff is typical of those people that signed up for a plan that never read it, and they have to certify when they make their claim that they never read it. Attorney Franklin responded at AE 669, commencing at line 4, et seq.: “They certainly had to have read it, your honor, in order to be able to select the plan that fit the number of minutes that they needed”. Attorney Franklin further stated at AE 669, at line 14, et seq.: “In Exhibit A, there are five different plans offered anywhere from 400 minutes to 3000 minutes, and they have to make a selection. It has to go into their contract. Sprint has to know what the plan is that they select. They make a selection.”
That is a collection of quotations from the record with no discernible structure or point. As the reader proceeds through that paragraph, she must attempt to impose her own logic on the sentences and details as they flow past. The writer has lazily failed to give her any guidance on that front. Instead, the writer has simply dumped a collection of unstructured information at the reader’s feet and said: “You figure it out what it all means.”
So how can you do better?
A recurring theme of this blog (and its accompanying book) is that your writing will be stronger if you write with the reader’s brain in mind.
Here are some ideas loosely borrowed from the field of cognitive science that are relevant to how writers should structure information for professional audiences:
Attention span. Attention is a scarce resource. Legal documents make high demands on their readers’ attention because the law is complex, legal language is often unfamiliar, and readers may lack interest in a document’s subject matter or have doubts about their ability to understand it.
Motivation. Attention and motivation are highly related. To effectively make a claim on readers’ attention, writers must help readers see why the text matters and motivate them to follow along with the writer’s reasoning and pay attention to important details.
Working memory and chunking. Our working memory is responsible for holding information in mind for immediate processing. We can hold roughly seven distinct pieces of information in our conscious awareness at once.
“Chunking” refers to the process in which we collect various pieces of information into a single unit, thereby making room in our working memory for other information.
Working memory and reading comprehension are highly related because reading a text requires us to integrate and absorb many new pieces of information at once. At the most basic level, a reader must hold the beginning of a sentence in her working memory until she reaches the end of the sentence so that she can parse the sentence’s meaning as a whole.
Writers can help ease demands on readers’ working memory by “chunking” information, reducing the number of discrete items readers are forced to hold in mind as they proceed through a text.
Schemas and narratives. Our minds have trouble processing and remembering disconnected details. We subconsciously try to impose order on those details by grouping and classifying them, linking them in narratives, or otherwise building structures to “hold” them. Relatedly, as we learn new concepts, our minds construct schemas or knowledge structures representing those new concepts and relating them to what we already know.
Writers can help readers remember important details by crafting them into compelling narratives. And they can help readers create schemas by imposing a logical structure on the text’s material and making that structure clear to the reader — perhaps with techniques such as numbered lists or visual aids such as diagrams.
Scaffolding. The reading process of transforming a stream of new information into a mental schema is demanding and prone to error. Good writers — like good teachers — can help the reader with this process by “scaffolding” new information, providing temporary structures for that information, conveying it in manageable doses, and being sure to relate it to what the reader already knows.
Cues (or Triggers). Cues or triggers activate existing schemas, retrieving the long-term memory traces in which our past knowledge is embedded. This aids reading comprehension because we understand a text better if we have some background knowledge about its content.
Here’s a practical example. When a writer signals through a heading that the next section of a brief will address negligence, that mention of the term “negligence” activates the reader’s schema or background knowledge about that topic. This stimulates the reader’s long-term memory, priming it to be ready for tasks that will draw upon the reader’s (perhaps dormant) knowledge of negligence law.
Thoroughly absorbing these concepts can transform how you think about legal writing. They can help you see yourself as not only a legal writer, but also a legal educator whose goal is to help the reader absorb and retain important information.
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Ryan McCarl teaches Advanced Legal Writing and researches artificial intelligence law and policy at the UCLA School of Law. He is also a partner at the law firm Rushing McCarl LLP. You can follow him on LinkedIn and Twitter as well as his personal blog.