“Voiceless, passive, complex writing is a liability.”

— John Campbell, associate professor at the University of Denver Sturm College of Law and co-director of the Denver Empirical Justice Institute.

A recent study published at the University of Denver Sturm College of Law finds a strong correlation between attorneys who win cases and attorneys who most value writing style.

Mr. Campbell studied 200 cases each from three appellate courts: the U.S. Supreme Court, the U.S. Court of Appeals for the Ninth Circuit, and the California Supreme Court.

He focused on:

  • average number of words per sentence;
  • percentage of sentences that contained passive verbs;
  • how well sentences were written as a whole;
  • how easy sentences were to read;
  • occurrence of jargon;
  • how well the sentences were pulled together; and
  • how active the writing was.

Of note, he found that briefs filed in the U.S. Supreme Court contained fewer words per sentence (15) than those filed in the other two courts (about 16.5 words per sentence).  Campbell writes:

U.S. Supreme Court briefs were, on the whole, simpler and clearer. Average sentence, passive index, bog index, and reading grade registered the simplest (lowest) scores. The briefs also scored best (highest) on pep, and were in the middle on jargon and glue.

At first glance, this might be surprising. The U.S. Supreme Court has a light caseload, the Court hand-picks its cases, each justice has four clerks, the issues presented are all important, they are briefed by some of the largest firms in the country, and the average attorney has decades of experience. We might expect this to produce advanced diction, complex sentences, and more focus on content than on style. After all, the Court has plenty of time to discern the meaning of the briefs, and the issues themselves are complex. Instead, we see the opposite: style matters, and simplicity and clarity are the norm.

The author also concluded that there was a correlation between good appellate writing and a positive outcome in the case.

You can find Professor Campbell’s entire paper online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3011605 or via The Colorado Lawyer, Vol. 46, No. 3, March 2017.