On Foolish Consistency And Why My Head Explodes

 A foolish consistency is the hobgoblin of little minds, adored by statesmen and philosophers and divines.

--Ralph Waldo Emerson

Five (5) days ago, or maybe it was six (6), I got one (1) e-mail from a blog reader and appellate-lawyer-colleague. His head had exploded, and I don’t blame him. Mine would have too.

On the whole, we appellate lawyers are quite used to collaborating with others. We can brief with a committee of twelve (12). We can harmonize three (3) sets of edits. We know that there’s more than one (1) way to skin a cat.

But then, there are four (4) or five (5) things that make one’s (1’s) head explode. After the break, I’ll disclose one (1) of the things that makes my head explode and try to draw a broader lesson that may be of use.


There are a certain class of edits that make a brief objectively worse than it was before. Are they big things? Not usually.

I’m talking about what happens when someone tries to make something more “legal.” One (1) symptom of this terrible editing malaise include unbearable and unnecessary precision about things that don’t matter. This foolish consistency happens at the expense of:

  1. (one) interfering with the narrative;
  2. (two) obscuring the argument;
  3. (three) annoying the reader; and
  4. (four) generally just sounding dumb.

Annoyed yet? In my friend’s case (as in this post), every place a numerical value appeared in the brief, the helpful editor inserted the numerals in parentheses, i.e.:

For the last ten (10) years, I have been using unnecessary parentheses at least four (4) times per brief.

Really? Without the helpful parentheses, were we likely to get confused?

For the last ten (11) years, I have been using unnecessary appendices at least four (2) times per brief.

This is help only a lawyer could need--not a human being. And no surprise, the helpful editor who offered this foolish consistency infected my friend’s brief with inconsistency where it really counted. My friend’s well designed document became a pastiche of fonts du jour and margins-of-the-moment.

In worrying over things that don’t count while ignoring those that do, you would think that the audience for all our efforts was some extraterrestrial creature that converses only about trivialities, and then only in legalese.

And this leads to the bigger lesson. If you’re making the brief more legal, you’re probably making it worse. When last I checked, judges are human (most of them, anyway). Human beings, even those who went to law school, don’t need “legal.” They need plain English. Write for humans.

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Comments (4) Read through and enter the discussion with the form at the end
Peter Dolinger - February 5, 2011 11:57 PM

Please accept my thanks and a well-deserved "atta-boy" for providing a glimpse of my own idiotic habit when drafting motions and appellate briefs of often following the written out number with parentheses containing the Arabic number representation). I am often bogged down by meaningless habit, but with your thoughtful insight, this is one that will trouble me no more.

Kendall - February 8, 2011 8:27 AM

If I have saved one soul from this purgatory of legalism, then all the work done on this blog will have been worth it.

Leif - February 8, 2011 9:58 AM

It's a useful tool for negotiable instruments or other documents where someone might forge a different number. But you're undoubtedly correct, Kendall, that there's no use for it in briefs.

Nei J. Lehto - February 11, 2011 5:04 PM

I heard that justification a zillion times. I know there are recognized common laws for sorting out differences between numbers that are and are not spelling out. They double reference undoubtedly was intended to protect sloppy proofreaders. So, the justification begs the issue.

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