As a practitioner, federal magistrate, and now Tenth Circuit judge, Judge Robert Bacharach has seen many different types of legal writing. Recognizing that legal writing can always improve, he studied both historical writing and oratory alongside the science of psycholinguistics and found a new way to help legal writers better their craft. In this week’s episode, Judge Bacharach joins Jody Sanders and Todd Smith to share the ideas he compiled in his book, Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. Judge Bacharach talks about his career, his path to the bench and appointment to the Tenth Circuit, and his process for writing the book. He also shares his perspective on ways to make briefing more interesting for readers while still providing valuable information.
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Psycholinguistics and Legal Writing | Judge Robert Bacharach
We’re extremely fortunate. We’re traveling a little bit out of our normal circuit and state lines. Our guest is Judge Robert Bacharach from the Tenth Circuit Court of Appeals. Judge Bacharach, thank you so much for joining us. We’re thrilled to have you.
I’m delighted to be here. Thank you.
You’re coming to us from Oklahoma, is that right?
We’ve had a couple of guests over the Red River. We’re glad to have another one joining us. Judge, if you would tell us a little bit about yourself and your background.
I graduated from law school in 1985. Upon graduation, I clerked for two years for Judge Holloway, who was a judge in the Tenth Circuit with Chambers in Oklahoma City. In 1987, I went to work in litigation for a firm in Oklahoma, Crowe & Dunlevy, until 1999. I was then appointed to be a U.S. Magistrate Judge in the Western District of Oklahoma. I served there for almost fourteen years until 2013, when I was appointed to the Tenth Circuit. I’ve been here ever since.
I’ve been before federal magistrate judges. I understand but I don’t know if I’ve ever had the chance to hear one talk about the job and their experience. I know it’s a little different than a federal district judge, but I’d appreciate your perspective on what it’s like and what magistrate judges do.
That’s not uncommon. A few people know a lot about the position of being a magistrate judge. One of the wonderful things about the magistrate judge system is that Congress created this mechanism to have federal judges throughout the country and they would do different things in each district court that are particularly suited to the caseload in that district. For example, if you have a lot of prisoner cases, let’s say in Dallas, the magistrate judges may concentrate on prisoner cases. In another district, let’s say in Alabama, where there may be relatively few prisoners for that population, they may do very little of that kind of work. It varies from district to district. Where I am, here in Oklahoma City, there was a heavy prison population. We spent a lot of time dealing with prisoner cases. We deal a lot with Social Security disability appeals––this is relatively common throughout the country, Jody. We conducted a lot of settlement conferences, basically a mediation. Apart from that, we would take delegations from the district judges––a variety of discovery motions, discovery issues––it ran the gamut of what will be assigned.
Could parties consent to trial before you as a U.S. magistrate judge? I hear about that happening around here a fair amount.Judges must be uniformly chosen based on their ability to set aside political beliefs, especially in their judicial decision-making. Click To Tweet
It varies so much, Todd, from court to court. It depends a lot on the tradition in that jurisdiction. It is becoming far more common throughout the country for more and more parties to consent to trial by a magistrate judge. One of the things that will affect that is how heavy the caseload is. For example, there are some federal districts in California that have unbelievable caseloads. You can imagine, if you’re one of the parties in one of these heavily litigated districts where you have to wait years to go to trial, there are a lot of incentives to consent magistrate judges. That means that you’re going to get in quicker and get your day in court where your federal judges conduct the trial ably. That’s one of the variables that will affect how often the parties consent.
It seems like from a practical perspective, a magistrate judge would be a little bit more public-facing and public-interacting than even a federal district judge. You have many different things than initial appearances and things that may become before you that a federal judge doesn’t even have.
That’s true. When I became a magistrate judge, one of the things that I did was to talk to other more experienced magistrate judges and get their suggestions about the job. I will never forget a relatively new, but more experienced magistrate judge than myself, said that in her view, one of the most important responsibilities that she had was conducting arraignments in initial appearances. That struck me as interesting and counterintuitive because that’s one of the few things that a judge has very little discretion to make any decisions at all. It’s primarily to give advisement of rights to the accused in the case of arraignment to take a plea of not guilty because magistrate judges cannot accept guilty pleas in felony cases. They can accept a guilty plea in a misdemeanor case, but not in a felony case.
I asked about that. She said, “When you conduct an initial appearance or an arraignment, it is the first time that that individual who now has his or her liberty in jeopardy will see a federal judge. It may not be the federal judge. It may not be the federal judge that’s going to conduct their trial, but they’re not going to draw these distinctions. What they want to know is, “Is this process going to treat me fairly? Are the judges going to treat me civilly? Are they going to assume that I’m guilty and treat me as such?” I was glad that she told me that because I vividly remembered that and tried my best to remember that for every initial appearance and arraignment that I had.
That’s indicative of what you’re talking about, Jody. Magistrate judges are on the front lines. In the civil context, when we conducted settlement conferences, one of the wonderful things about conducting settlement conferences is that you get a lot more exposure to the parties. For example, you might have a product liability case where the plaintiff may testify and get exposed to the jury for only an hour or maybe a couple of hours. Frequently, though, I would spend the better part of the day with that individual. They wouldn’t be restricted from talking to me about what’s admissible and what’s inadmissible. They may talk about their family, what their aspirations from the case are, or what the litigation has meant to them personally and emotionally. You have people in tears frequently. They would be able to vent to me about their frustration, maybe with the other party, with me, with their lawyer or with their family members. It was such an intensely personal set of interactions, and a dimension that the public and lawyers typically don’t see. It was extraordinary.
The settlement conference thing is something that you don’t see with trial judges. Jody and I both practice in state court here in Texas a lot. We have a well-established mediation bar. Our trial judges in state court don’t participate in settlement conferences. I’ve been involved with a few U.S. magistrate judges and it is an interesting process. You do feel like you’re in chambers with the judge or maybe the conference is being held somewhere else. It’s interesting to hear the judicial perspective on issues that you could legitimately discuss with the parties as far as the risks and potential rewards of taking their case to trial. Unless they’ve consented to trial before the magistrate judge, the magistrate judge conducting the settlement conference wouldn’t be the judge sitting on the bench and making those rulings at trial. That’s one thing that makes that process work. It’s that the magistrate judge is not usually going to be the one that would be trying the case.
That’s exactly right. In different courts, different judges have different philosophies about this. But in our court, this was the case––and I’m confident that it still is the case––that if you were going to be the trial judge in a consent case, someone else or another magistrate judge would conduct that settlement conference. That’s very important so that parties knew that if they expressed stubbornness to me as the settlement judge, they knew that that wasn’t going to come back to haunt them in any way. They could be completely candid.
What that also did was to take the judge out of his or her judicial role. I never wear a robe in a settlement conference. I infrequently used my office. I would go to where they are and sit in their room. You are acting as a judge in a sense but in a real sense, you’re working as a facilitator and confidant. Being an ally is the wrong word because you’re not an ally for either party but you are an ally toward the concept of settlement trying to bridge those differences.
One of the things that was difficult for me as a settlement judge is sometimes, you will have a strongly held belief that the parties will be better off in settlement. It’s difficult but it’s important to remember that if the parties want to go to trial, it is their decision. Even though you’re a judge, you can’t and shouldn’t press too hard because you do have an influence that a private mediator may not have. That is very important as well.
You went from that appointment in ’99. You served about five years as a U.S. Magistrate Judge and then you were fortunate enough to be appointed to the Tenth Circuit in 2013.
I was a magistrate judge for a little longer than that. I was a magistrate judge for almost fourteen years. Partly why I mentioned that Todd is I was blessed to get appointed as a magistrate judge. I had no idea that I would even be seriously considered. In fact, when I interviewed with the committee, my wife and I went on a trip and someone said, “What if you get called back to interview before the district judges?” and I said, “The district judges aren’t going to give me an interview.” My wife and I were in Las Vegas when I got a call at 6:00 AM. It was 8:00 AM in Oklahoma and in a groggy voice, I answered the phone. It was a wonderful opportunity and job. I can truthfully say that I enjoyed every single day in those years and I had such great colleagues.
I sure didn’t mean to short you on your time-of-service, Judge. You’ve made that transition and you’ve been sitting on the Tenth Circuit for over seven years. Tell us about the nomination and confirmation process to the Tenth Circuit. We’ve had a few federal judges on our show. Some have offered more information than others. We’re sensitive that some of that is for inside baseball. Tell us what it was like to go through once you got the nomination.
It was a surreal process. I never expected to be seriously considered as a magistrate judge and I certainly never thought I would be seriously considered for the circuit judge. I didn’t have any political ties. I didn’t know any of the representatives or either of the senators. I’m a lifelong Democrat living in a state where all of the representatives at the time were Republican. Our two senators were Republican. We had a Democratic governor. He was the only powerful democratic officeholder in the state and I knew who he was but little beyond that.
Somehow, I got selected. After I was nominated, I met with Dr. Coburn, one of the two U.S. senators since Jim Inhofe. He told me that he would support me. I was ecstatic because Dr. Coburn had said no to quite a few people. I was not President Obama’s first or second pick. I was his third pick. He had said no to a lot of judicial nominees from Oklahoma. I called the White House Counsel’s office and said, “Dr. Coburn said that he would support me,” They said, “That’s good.” I thought, “Did I wake you up? Why aren’t you as excited as I am?” They said, “To be honest with you, Bob, we’re not surprised because that’s how President Obama got your name in the first place.”
I had never known him. I found it difficult to get a meeting with Dr. Coburn. I never was able to meet with him until after I was nominated. I said, “How is it that you forgot to tell me that? I would have had a lot less anxiety if you shared that little tidbit of information.” They said, “To the administration’s credit, they took vetting to a whole new level.” Their explanation was, “We didn’t want to short circuit the process. We didn’t know if you would be a good nominee or not. He gave us your name then we went and vetted you,” which they certainly did. It was odd. I never voted for Dr. Coburn. I disagreed with his politics. He didn’t care one bit. He didn’t care what I thought politically.
I certainly wouldn’t share this publicly if he hadn’t shared it publicly. He told me privately that he supported me because he was convinced that I would do what I thought the law required and that I wouldn’t let my personal ideology influenced me. He also told me privately––and I wouldn’t share this but for the fact that I had heard him say this publicly before the Senate––that if Governor Romney had beaten President Obama in 2012, he was still going to recommend me if it was President Romney, even knowing that there would be a Republican administration, there would be two Republican senators, and they certainly didn’t need to pick a lifelong Democrat in that position. Whatever one thinks of Dr. Coburn’s politics, he was quite extraordinary.
When many of the headlines are about political divisions, that’s a great story to hear about someone that was an exemplary character in that respect.
At the time, we all thought that politics had crossed the line. In retrospect, it’s become much more polarizing in Washington. Perhaps, we need more people like that. Of course, the representatives and senators are going to have strongly held political beliefs. We should be uniformly trying to select judges who try to follow the law. It shouldn’t matter what a judge thinks politically because it’s horrible to have the idea that any judge is going to let his or her political beliefs influence their judicial decision-making. That’s not supposed to happen.
It certainly undermines the whole confidence in the judicial branch. Having been a magistrate judge on the trial level for so long, how was the process transitioning over to the appellate court?
It was so different. One of the things that federal judges do in common, regardless of their position, is research, write, and edit. All of that was much the same, but I did acquire a far more diverse type of caseload. All of a sudden, I wasn’t just dealing with Social Security disability appeals or prisoner cases, but I was dealing with a whole wide range of types of cases. Frankly, one of the exhilarating parts of this position is being able to learn so much about areas of the law that I knew nothing about. That has been different.
The most tangible difference is when you become a circuit judge, all of a sudden, you have no power whatsoever. If you asked me for a one-hour extension of time, I can’t grant you a one-hour extension of time. One of my colleagues said, “Jody wants an extra hour.” If two of my colleagues say, “No, Jody. That doesn’t deserve an extra hour.” I can’t even do that. You can’t do anything. There was this wonderful man. His name is Lee West. He worked as a district judge here. He was legendary. He used to always tease that the circuit judges are okay as long as it’s not like a Noah’s Ark: one circuit judge is okay, but if you put two circuit judges together, there’s going to be trouble.
That reminds me of stories I’ve heard about other courts and some of what I’ve seen that there’s more persuading going on in the chambers between the judges than one might think. On a panel of three, if you’re the one and it’s a two-to-one vote and you’re passionate about your position, I would think you might be tempted to go and try to persuade one of your colleagues to come to join your side.
It’s true, Todd. One of the many great things about this process is we all feel strongly that we have the legally correct view and our colleagues are wrong. I’ve had this happen many times. I passionately and vigorously try to convince my two colleagues that they are making a big legal mistake and then we get to discussing it. And a couple of hours will go by, and we’ll go back and forth, and a light bulb will go off in my head and I’ll realize I’m the one that’s wrong.
That has happened to me a lot. Sometimes, it doesn’t happen immediately. I remember a time where I had exactly this happen. It was my first year on the court. We had a passionate discussion about it. On the plane ride back from Denver, I had that light bulb go off. I got back at 8:00 the next morning. I emailed my two colleagues and said, “On the flight back to Oklahoma City, I finally figured out what you had been saying all along to me. I completely agree with your view. I completely changed my mind.” Sometimes, it happens during the drafting process.
One of the things that all my colleagues have in common is a wonderful talent and the ability to listen to one another. We all have egos and pride but we all are aware of the fact that it’s not about us. It’s trying to get the decision and the analysis correct in every case. If that means we have to eat crow and say, “I’ve drafted this forty-page dissent and I’m throwing it in the trash can because on the fifth round of editing, I see now these revisions and the majority opinion are correct. I’m going to discard my dissent and join the majority opinion.” I’ve seen that with all of my colleagues, the ability and willingness to do that. It’s quite extraordinary.Law practitioners all have pride and ego. But at the end of the day, it is all about getting the lawfully correct decision and analysis. Click To Tweet
That’s one of the things as an appellate lawyer and counseling appellate clients that’s hard to express because, from our perspective, we write the briefs. Maybe we have an oral argument and then it goes into a box that you can’t see inside of. At some point in the future, you get an opinion out. What we miss is all of the things that go on behind the scenes that it wasn’t initially a 3-0 opinion or maybe it was a 2-1 opinion going a different direction. We do miss the back and forth, the editing, and the drafting that come up with the final, polished opinion that ends up in front of us.
I wish it weren’t the case because I believe that lawyers in the public, generally, would have an even greater appreciation for the process. I’m not saying the individual judges. We’re all fallible and we all make mistakes but at least they would see that we are sincerely trying to get it right. We’re not saying, “The plaintiff needs to win because the plaintiff has the moral high ground in this case.” We are diving into the weeds, asking “What does this case say? What did the parties argue? Do we have differing interpretations of what the parties’ arguments are?” I wish there was a way for lawyers and the public to have a window into the processes because the appreciation for the process would be enhanced if that were the case.
The description that you gave of that process illustrates the difference between your last two jobs. As a magistrate judge, if you’re on the bench making rulings, you’ve got to make a relatively quick ruling right then and there. The process of going through the draft revisions and trying to persuade your colleagues, that’s the reason why appellate courts don’t issue their decisions from the bench.
You called it. That’s exactly right.
We’ve talked on the show before about how if you’ve got clients who attend oral argument, sometimes they don’t understand how the timeline works and that it could take a long time to get a decision. They’re used to the trial judge who maybe did issue a ruling either on the bench or shortly after. They get conditioned to all courts ruling that way. We know that can’t be the way it is because you can’t make sure to use that thoughtfulness to make sure that the law is being faithfully applied to the facts. Even more importantly, you’re getting the law right in the first place because sometimes it’s not that clear.
I’ll tell you one thing about our court. Our court is, I think, unique of all the circuit courts in that, when we have a published opinion, we circulate it to every judge in our circuit—not just to the panel. The panel has already cast their votes and we have maybe a majority opinion and a dissent or maybe a majority opinion and a concurrence, and then all those opinions get circulated to all the judges. This is just for published opinions, and the idea is that if other judges in our court are going to be bound by this now as precedent, they ought to be able to voice their input to the judges on the panel. We all do that frequently.
Sometimes, the majority may have decided something and it may end up costing delay. That is an unfortunate consequence. We do try to remind ourselves of the need to decide expeditiously. That is one downside of our process. It does add to the delay but that too provides a further safeguard. Maybe we’re still going to make a mistake. Hopefully, if we do make a mistake, other judges outside the panel may help us to recognize that. They may help us think through something and we get thoughtful comments from what we call off-panel members.
One of the reasons that you’re on this show is that you have written a book. The book is called Legal Writing: A Judge’s Perspective on The Science and Rhetoric of the Written Word. One of the things that’s most impressive is I don’t think I’ve ever met a federal judge that said they didn’t have enough to do already and you find time to write a book. How did this idea come to you?
I’ve always enjoyed legal writing. When I became a magistrate judge, I thought I was a good writer but I knew that I could be a better writer. I started studying legal writing books trying to improve myself in that regard because that was a large part of my job. When I became a circuit judge, I had an even greater awareness that my words will matter, as they did before, but not just to the parties, but to other lawyers in other cases. My words are going to have a ripple effect. They’re going to have influence and can be interpreted for purposes that I couldn’t even foresee.
It was extremely important for me to try to better myself as a legal writer, become more sensitive to my words, how to utilize words, and put together pieces of information. I started writing Legal Writing book as a self-help measure. I thought if I discipline myself to write my own original thoughts about legal writing it will force me to intensify my study of materials that others before me have written to enhance my legal writing ability. As I did that, I tried to open myself because there are hundreds and hundreds of legal writing books. I don’t want to just say the same thing that other people have said.
I learned about an area known as psycholinguistics. These psychologists study cognition and fluency. As legal writers, all of us, we all think about our audience. If you’re writing to the Fifth Circuit, the County District Court, or whoever the judges are, you’re going to be thinking about their reaction to the way that you put together pieces of information. We think about it in terms of the length of the brief or whether they have a screen cite. It’s a variety of strategic decisions.
These psychologists are taking the things that we have done for decades through a matter of intuition. They have been doing empirical studies on how the brain processes language. When you think about your audience, you can dive into the minutiae and think, “When a judge reads a particular paragraph that takes up the better part of a page, does it affect the judge’s reading speed? Does it affect the judge’s ability to comprehend that paragraph if it’s not broken up into shorter paragraphs or the way sentences are put together?”
I tried to learn as much as I could from psycholinguistics and tried to apply those principles, not as an academic exercise, but tried to draw practical lessons for us as legal writers of how you put together a sentence, how you link information in sentences, how you create context, and how you paragraph. What font do you use? What considerations in deciding whether to use fonts or visual images do you utilize? You try to draw from these lessons that these cognitive psychologists have paved the way for.
I also tried to think creatively about other forms of communication. These masterful speeches from orators of our past like JFK, FDR, Winston Churchill, and Martin Luther King. What is it about the way that they delivered speeches? That was oral communication and not written communication, generally. What is it about the way that they delivered and put together pieces of information that captivated us? Why was JFK captivating as a speaker? I tried to dive into those speeches from famous orators of our past. Those were four of the principal subjects of my studies. I tried to extract lessons that we can apply in our written communication.
I don’t think it’s coincidental that there was largely an overlay between the lessons that cognitive psychologists have drawn and the lessons that these orators illustrated in their speeches. Even though JFK and FDR were not psycholinguists and didn’t know psycholinguistics, it’s amazing that if you look at the lessons that were drawn from psycholinguistics, the way that they applied maybe intuitively exactly those same principles in their speeches. I thought all of us could derive some practical, everyday advice in how we put together information by drawing on these two resources: psycholinguistics and oratory.When you have anxiety, it's more difficult to listen and comprehend. Click To Tweet
Were there things that you learned putting this together that surprised you or changed the way that you’ve approached legal writing?
Absolutely. One of the things that I always thought is if you have a sophisticated vocabulary and if you use $64 words, that you signal intelligence. You signal to the reader, maybe even implicitly, that you’re using more precise language. There’s a cognitive psychologist who is now at Carnegie Mellon, Daniel Oppenheimer, who conducted these studies when he was doing doctoral work at Stanford. He published a paper in 2006.
I’ll give you an illustration that was surprising. He took six essays that were written by applicants for the graduate school in the Department of English at Stanford. He took seventy-one undergrads at Stanford. He took these essays that were written in simple prose and he would call that the original version. He then would take every third content word and make it a more protracted word. He would change every content word and make it a bigger word. He gave it to the seventy-one undergrads and asked them, “Which do you prefer? Which is would you rank second? Which would you rank third?”
Not surprisingly, the undergrads rated the simplest prose the best, the moderate complexity second best, and the most complex the third best. What was shocking to me was when he asked the second question and that is, “Which of these students should be admitted to the graduate school?” By an overwhelming margin, their answers mirrored their answers to the first question: the authors of the simplest prose should be admitted. The ones that were least likely to be admitted were the ones that use the longer words. They were the least meritorious applicants.
He did other studies. He used two translations for the meditation prose from Descartes, the philosopher. There was one by Twain that was rated as simpler prose than the translation by another translator. He asked another group at Stanford, “Which is the more intelligent individual?” He told half the group that it was written by Descartes, and he told the other half of the group that it was anonymously authored. In both groups, they rated the intelligence of the simpler translation as more intelligent than whoever had written the other work. This was also replicated in two other studies.
Our intuition as legal writers is that using simple language carries the drawback of signaling a lesser intelligence. But one of the things that surprised me was that the empirical work does seem to demonstrate that precisely the opposite is true. It actually enhances the perspective of the author by using simple prose analysis. It’s a somewhat shocking revelation.
I wanted to ask you about how visual images fit into this. It sounds like maybe it goes more into the psycholinguistics side. What did you learn more specifically about the effectiveness of visual images in legal writing? We’ve seen more of that in recent years. We’ve had a previous guest on our show, Mark Trachtenberg who’s a friend of ours. He has written a lot about that and a few other people. It seems like it’s more commonly in use.
It will be increasingly common the further we go in future years. It is wonderful. I left litigation in early 1999. Even then, there was never a case that I remember being a part of that would go to trial where at least one, and frankly in almost all cases, both lawyers, would not use the visual aids for the jury for the fact finder. But for some reason, many of us grew up thinking, “You don’t do that in brief. It’s supposed to be more stale. It’s supposed to be drier.” But if you’re describing the layout of a house and where the officer went to search various routes or describing the search of a car, how is it that people think that you can simply dryly describe what took place just as effectively without a visual aid? You’re describing something that by definition is visual. You’re enticing the reader to draw a visual image in his or her head. Why not give them an accurate visual image so that they can see what exactly took place?
There was a case that I wish I could remember the name of that Judge Posner wrote when he was sitting on the Seventh Circuit. It was a First Amendment case involving a march through downtown Chicago. I’ve been in downtown Chicago but I don’t know the street names and the likes. He, in prose, described the route that the protesters took and where they were isolated to their designated protest area. He accompanied that with a visual image that he got off of Google Maps and drew an arrow. If you read the prose without that map, I defy anybody, unless you are from downtown Chicago, to be able to visualize that path. Once you have that path visually in front of you, it becomes easy. Visual images are a much-underutilized resource in brief writing.
It makes me think about when you’re looking at an exhibit or appellate record and trying to correspond the two when you have a witness, “You’re looking at Defendant’s exhibit five.” “Yes.” “Where would this happen?” “Right here.” “What about that?” “Right there.” “What about this?” “Yes, that was right there by that thing.” The judge or the advocate are looking at the picture going, “This doesn’t help me much.”
That’s such a great example, Jody.
On the subject of oratory, I know that you have focused on legal writing and the written word, but what about oral arguments? Do some of these lessons apply equally to the oral argument?
To some extent, oral argument is a different niche. In oral argument, the most important principle is to answer the judges’ questions. In my view, that’s the only reason for oral argument. I don’t mean to minimize the importance of the oral argument. On the contrary, it’s changed my mind in a lot of cases. It’s important. We’ve all read the briefs. We’ve studied the cases and studied the record when we go to oral argument. If a lawyer is simply regurgitating what’s in the brief, that’s not going to be helpful.
When I was in private practice, there was a state judge in a county district court. He would begin every oral argument and he would say, “I’ll hear from the plaintiff but don’t tell me what’s in your briefs.” I used to always have such anxiety appearing before that judge because if I thought it was a good point, I would have put it in my brief. I’m not sure if I would be okay if you had restricted me in that way. There’s a lot of truth to that. You get up and what else are you going to say? It’s in your brief. The judges are not going, “Maybe it’s a stupid question.” This is the time to educate the judge. You don’t need to say, “Judge, that is a stupid question.”Although I’ve had plenty of people tell me that.
That is an opportunity to educate the court. We’re trying our hardest to understand it and to analyze it. Maybe we’re completely agreeing with what you’re saying but we are trying to make sure that we’re not going astray from the law by adopting your view. Maybe we’re trying to explore how far the principle will extend. It’s almost impossible to know exactly why the judges are asking the questions, but what is important is trying to listen to the judges’ questions, which is difficult.Humans don't process information a sentence at a time but instead a huge chunk at a time. Click To Tweet
I know from my experience, when I appear in court I always get nervous. I still get nervous as a judge. When you have anxiety, it’s more difficult crudely to listen. It’s tempting––knowing that you’re going to be expected to give a meaningful, intelligent response in a second––when the judge is formulating his or her question to be trying to formulate in your mind your answer. What that does is impede your ability to listen to the question. It’s a difficult process to actually listen without thinking about what your answer is going to be and, before too long, giving a meaningful answer. That’s by far the most important. A lot of the things from legal writing that we can do by editing ourselves and others dozens and dozens of times, it’s too much to expect ourselves to be able to do that momentarily in oral argument. A lot of the lessons for legal writing can’t be applied in a meaningful way to oral argument.
You talked about studying the great speech makers like JFK or Churchill. The lesson isn’t we need to all be as great as they were, standing behind the lectern. Did you consider in your book nonverbal cues? How to project or posture yourselves to be effective as an advocate?
Not really, to be honest with you. I didn’t focus too much on oral communication except as it applies to trying to derive lessons for legal writing. I didn’t delve too much into oral delivery.
Based on the book’s title, that makes a lot of sense. You talk specifically about this being about the science and rhetoric of the written word. I was intrigued by what you said about the pattern of great communication in written form carrying through into oral delivery as well.
One of the examples in the book is about the idea of chunking information. Many of us in high school were told to keep our sentences short, keep them to 20 to 25 words. Martin Luther King, Jr., in Letter from Birmingham Jail, has one sentence that is 305 words. I couldn’t write 305 words myself and understand it, much less have anybody else understand it. Martin Luther King, Jr. wasn’t just a brilliant oral communicator. He was a master at putting together pieces of information.
What cognitive psychologists tell us is that we don’t process information a sentence at a time. We process information a chunk at a time, which they refer to as a familiar unit of information. It can be a sound or a clause. If you think about our telephone number, we write it in the area code as one chunk. The first three digits in parentheses. They are visually segregated so we can see where the chunk starts and stops. We see the three-digit prefix before another piece of punctuation, a dash and the four digits after it. Psychologists who study cognition tell us that’s how we process information.
I’m not suggesting that Martin Luther King Jr. was a psycholinguist. If you look at that one sentence, what he does is he puts that 305-word sentence together through twelve chunks of information. The first chunk is, “When you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim,” and then he adds a semicolon so you know when you are reading it that he has a forced pause. This is one chunk, one unit of information that we will process. When we’re talking about visual images, we will visualize what he said in that first chunk in our heads––whether we want to or not, we do it.
He then goes to a second chunk, “When you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters,” He does it for ten more chunks of information. This is one of the illustrations where these masterful oral communicators are not just masters at the way that they can orally deliver information. There was also mastery of how they put together particular pieces of information. His messages would have been gobbledygook if people couldn’t understand it. If it was a 305-word sentence without any punctuation or any visual separators of where the chunks of information start and stop, we would be scratching our heads and saying, “I have no idea what he’s talking about.”
Nobody is going to read this sentence despite its extraordinary length and have any difficulty in comprehending it. It’s a masterful piece of oratory. For purposes of our legal writing, it’s more than that. It’s an illustration of how we can apply the same principles of putting together chunks of information in our briefs, our memoranda to senior partners and to colleagues, and letters to clients in a way that our readers, whether it’s the client, adversary, co-counsel, or whoever it is, will be able to process that information. That’s what I’m referring to. It’s these types of illustrations of how these orators have put together information.
I’ve got one more book to add to my reading list now. I love the topic and the title. You can bet that it’ll be finding its way onto my bookshelf and hopefully, to my nightstand or my reading chair where I will consume it. I love what you did with it in terms of bringing together the scientific aspects of it and then tying it to oratory. All with the goal of analyzing what is persuasive and effective legal writing.
It’s neat that we live in a time where science catches up with the art of legal writing. Legal writing has always been art but there is a science to it. I love that you have captured that component of it and draw practical empirical lessons that go along with what’s always been taught as a gut feeling, whether it makes sense or not. I appreciate that.
I appreciate your kind words. A couple of decades ago, one of the law clerks for another judge was at one of these lunches and I was asking this individual what they were going to do after their clerkship. They said they were going to teach legal writing. I thought, “What an odd thing to do. How can you teach legal writing?” This shows my naivete at that time. She said, “There are books about it.” I said, “You got to be kidding. I had no idea.” That was my exposure to it. I graduated from law school in 1985. I’m sure there were a ton of legal writing books but I had no idea of this resource that was available. Now, there are these great resources available to us to enhance our abilities. That’s one of the great things about being a lawyer at this point in our lives.
Before we wrap up here, I wanted to tell people where they could get your book and it’s published by the ABA Press. You can get it through their website.
That’s right. You can get it through their website or call (800) 285-2221 for ABA press.
The title is Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. There is a discount code that you can use through the end of 2021 to get a 20% discount on it. That’s LGLFBRA when you’re using the ABA website for 20% off. Thank you for sharing that with us, Judge. I know our readers will appreciate that.
Thank you for mentioning that. Thank you, Jody and Todd, for having me. It’s a delight to be with you.
This has been fantastic. Before we go and wrap up, we always like to ask our guests for a tip or war story. You’ve given some great ones. I don’t know if you have another one that you’d like to share but we always like to give you the opportunity if you do.
I’ll tell a war story. It’s not my war story, but I mentioned that this judge, who is now deceased, Lee West. He was a federal district judge for decades and decades. Early in his judgeship, he had a criminal defendant who, when the outcome was announced, wasn’t particularly pleased with the outcome. It was a criminal case. He stood up on the counsel table and then urinated on the counsel table. We had a memorial service after the pandemic. One of the judge’s long-time friends mentioned that when that defendant died, he mentioned that he was such a hero of his.
That truly is a war story.
I’ve never had that happened in my own experience.
Let’s hope you don’t have that happen in the Circuit.
Never let it be said that the practice of law or judging for that matter is boring.
That is true.
Judge Bacharach, it’s been a pleasure to be with you. Thank you much. We appreciate this.
Thank you all.
 Daniel Oppenheimer, Consequences of Erudite Vernacular Utilized Irrespective of Necessity: Problems with Using Long Words Needlessly, 20 Appl. Cognit. Psychol. 139–56 (2006), http://www2.psych.utoronto.ca/users/psy3001/files/simple%20writing.pdf.
- Judge Robert Bacharach
- Legal Writing: A Judge’s Perspective on The Science and Rhetoric of the Written Word
- Mark Trachtenberg – past episode
About Judge Robert Bacharach
Before that, he served as a United States Magistrate Judge for almost fourteen years. He is the author of Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word, published by ABA Press.
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