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Lance Long, Climate Change, Civil Disobedience and the Necessity Defense, in Earth Law: Emerging Ecocentric Law - A Guide For Practitioners (Anthony R. Zelle et al. eds., Wolters Kluwer, 2021)Clicking on the button will copy the full recommended citation.
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Catherine J. Cameron and Lance Long, The Science Behind The Art Of Legal Writing (2nd ed., Carolina Academic Press, 2019)Clicking on the button will copy the full recommended citation.
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Lance Long and Ted Hamilton, The Climate Necessity Defense: Proof and Judicial Error in Climate Protest Cases, 38 Stanford Envtl. L. Journal 57 (2018)Clicking on the button will copy the full recommended citation.
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Brooke J. Bowman et al., Oral Argument: The Essential Guide (Stetson University Institute for the Advancement of Legal Education, 2018)Clicking on the button will copy the full recommended citation.
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Lance Long and Ted Hamilton, Washington v. Brockway: One Small Step Closer to Climate Necessity, 13 McGill Journal of Sustainable Development Law & Pol'y 151 (2017)Clicking on the button will copy the full recommended citation.
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Lance Long, Is There Any Science Behind the Art of Legal Writing, 16 Wyo. L. Rev. 287 (2016)Clicking on the button will copy the full recommended citation.
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Catherine J. Cameron and Lance Long, The Science Behind The Art Of Legal Writing (1st ed., 2015)Clicking on the button will copy the full recommended citation.
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Lance Long and William F. Christensen, When Justices (Subconsciously) Attack: The Theory of Argumentative Threat and the Supreme, 91 Or. L. Rev. 933 (2013)Clicking on the button will copy the full recommended citation.
This paper is the third and final article in a series that discusses research performed over the past four years regarding the effect of certain language usages in appellate briefs and opinions. The first two articles, "Does the Readability of Your Brief Affect Your Chance of Winning on Appeal?" and “Clearly Using Intensifiers is Very Bad — Or Is It?”, were published in the Journal of Appellate Practice & Process and The Idaho Law Review, respectively. This article (in the Oregon Law Review), proposes a theory of "argumentative threat" which hypothesizes that when faced with an argument that a legal writer believes — or knows — she is likely to lose, the writer will tend to write in a style that uses more intensifiers. There is also some evidence (not statistically significant) that longer sentences and longer words may be associated with a defensive style of writing. The article illustrates its point by using recent majority and dissenting opinions of the U.S. Supreme Court. The article also suggests that the “conservative” Justices use more intensifiers in their dissenting opinions than their “liberal” counterparts.
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Lance Long and William F. Christensen, Does the Readability of Your Brief Affect Your Chance of Winning an Appeal? An Analysis of Readability in Appellate Briefs and Its Correlation with Success on Appeal, 12 J. App. Prac. & Process 145 (2011)Clicking on the button will copy the full recommended citation.
The study described in this article suggests that the length of sentences and words, which is “readability” for our purposes, probably does not make much difference in appellate brief writing. First, we found that most briefs are written at about the same level of readability; there simply is not much difference in how lawyers write appellate briefs when it comes to the length of sentences and words. Furthermore, the readability of most appellate briefs is well within the reading ability of the highly educated audience of appellate judges and justices. Second, the relatively small differences in readability are not related to the outcome of an appeal in a statistically significant manner. Our study did show, however, that the opinions of judges and justices are less readable than lawyers’ briefs and that the opinions of dissenting judges or justices are the least readable of all the appellate writing we analyzed. Ultimately, we conclude that readability, as determined by the Flesch Reading Ease scale, is a non-issue for legal writing at the appellate level. Although readability did not appear to be related to outcome, there was a statistically significant relationship between the readability of the courts’ majority and dissenting opinions. Dissenting opinions are decidedly less readable than majority opinions.
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Lance Long and William F. Christensen, Clearly, Using Intensifiers is Very Bad – Or is it?, 45 Idaho L. Rev. 171 (2008)Clicking on the button will copy the full recommended citation.
Although scholars have generally found that overusing intensifiers (words such as clearly, obviously, and very) negatively affects the persuasiveness or credibility of a legal argument, no one has studied actual appellate briefs to determine whether there is a relationship between intensifier use and the outcome of an appeal. This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But - and this was an unexpected result - if an appellate opinion uses a high rate of intensifiers, an appellant's brief written for that appeal that also uses a high rate of intensifiers is associated with a statistically significant increase in favorable outcomes. Additionally, when a dissenting opinion is written, judges use significantly more intensifiers in both the majority and dissenting opinions. In other words, as things become less clear, judges tend to use clearly, and obviously more often.
These results could be interpreted several ways. It could be that overusing intensifiers actually renders a brief suspect and subject to increased skepticism by appellate court judges. Alternatively, it could be that the overuse of intensifiers is accompanied by violations of other writing conventions that further affect the credibility of the brief. Or, it could simply be that appellants or appellees with difficult arguments (arguments that they believe they are likely to lose) tend to lapse into an intensifier-rich mode of writing in an attempt to bolster the perceived weaknesses of an argument. All of these factors may combine to produce the result. Of course, since no causal relationship is shown, it could be a yet unidentified factor. At the very least, the studies suggest the need for further research and a fruitful source of data for performing such research.