Supreme Tips on Legal Writing
By Scott Wood, clinical professor, Loyola Law School, Los Angeles. Wood offers writing workshops for litigators and one-on-one consultations. He can be reached at Scott.Wood@LLS.edu.
Over the past two years, Bryan Garner, the highly respected legal writing guru, interviewed eight U.S. Supreme Court justices on legal writing and oral argument. The conversations, totaling more than six hours, are available for viewing on Garner’s Web site at www.lawprose.org/supreme_court.php. Since busy lawyers may not have the time to watch them all, I asked appellate expert Paul Kenney1 to join me in viewing and distilling the interviews. Here are some tips from the Supremes that we hope will extend the benefits of Garner’s fine project.
Learning to write.
Justice Alito’s father was a high school English teacher and a close editor. “Sometimes it was a painful experience,” Alito said. Justice Kennedy was the son of a sole practitioner who taught him legal writing. He also had a “wonderful high school English teacher” and, while at Stanford University, took a course from famous novelist Wallace Stegner. Justice Scalia’s father was a linguist, a professor at Boston College, who taught him to be precise.
Justice Ginsburg learned a great deal from Vladimir Nabokov, one of her teachers at Cornell. She read Dickens’ Bleak House in Nabakov’s class. Chief Justice Roberts and Justice Kennedy also emphasized reading great literary writers: Shakespeare, Dickens, Trollope, Faulkner, and Hemingway. Among great legal writers, the chief justice named Chief Justice Rehnquist and Judge Henry Friendly. All the justices agreed that Justice Robert Jackson was one of the best. “You can’t write anything good if you haven’t read anything good,” said Roberts.
Knowing your audience.
Justice Thomas: “Assume that the Court has other things to read. People are really busy.”
Scalia: Write in a conversational, interesting style. The advocate has a duty to make the writing interesting.
Kennedy: “Capture the reader’s imagination.” The reader is busy. Make it quick and clear.
Roberts: Give the judges a colorful detail or two to help them pay attention to your case.
Alito: “When you have difficulty writing, it’s because you are not sure what to say. Think first. Have a clear idea and order.”
Roberts: No matter how complex the case, it boils down to four or five main points.
Justice Breyer: “If I see 19 issues, maybe he doesn’t have a good case.” Always make an outline; it could be just a few words.
Scalia: First comes a “lengthy germination,” then a detailed outline.
Alito: “Simplify, summarize, synthesize.”
Ginsburg: Use nutshell summaries; begin with short paragraphs that crystallize what the case is about. Justice Ginsburg begins her opinions with a “press release” summary.
Both Thomas and Roberts believe that the “summary of the argument” is the most important part of the brief, but Scalia says, “I never read it.”
Scalia feels that grammar matters even though it probably should not. Chief Justice Roberts, for example, cares about the correct use of “that” and “which.” Justices Breyer, Scalia, and Alito approve of starting sentences with “and” or “but.” Justice Breyer finds that construction useful where a single point requires numerous qualifications. Scalia further advises to avoid jargon if possible; do not put a word in a brief that you would not use at a social gathering. But since legal writing is technical writing, comments Alito, sometimes precision requires using the poor wording of a statute or case.
The justices unanimously called for shorter briefs. “I’ve never read a brief I couldn’t put down....Good legal writing is succinct,” says Kennedy. Roberts concurs, “I can’t recall ever being sorry to see a brief end.” For Scalia, the worst offense in brief writing is prolixity. He hates sentences with extra words that don’t do anything. He says, “If it’s short, I pay attention.” Ginsburg agrees, “Go through innumerable drafts. Aim for having the reader ‘get it’ on one reading. Good concise writing counts.”
Thomas: Being edited always helps. A good writer is humble. Avoid admiring your handiwork, and learn how to cut out your favorite sentence if necessary.
Breyer: Have a family member read your work. Don’t assume too much knowledge of the subject on the part of the reader.
Roberts: When working with a colleague in an unfamiliar area, independently master the subject first to gauge the quality of the input.
Justice Ginsburg teaches that when the other side is truly bad, the judge will figure it out. “So be dispassionate, never uncivil.” Avoid disparaging our adversaries, their arguments, and the judges who rule against us.
Your case is only as strong as its weakest link, says Breyer. While Scalia warns that briefs must be intellectually honest, Breyer advises not to load the “questions presented” in your favor; if you do, they will not be read. State the facts fairly (Kennedy) and with rigorous accuracy (Scalia). Do not stretch the precedents, says Thomas. Ginsburg says that the judges will see through your slants on authorities; if you give ground, you gain credibility.
Kennedy: “The law lives through language. We must be very careful about the language we use.”
Breyer: Lawyers’ greatest virtue is the ability as generalists to translate complex processes and technologies into plain English.
Roberts: You have a duty to yourself as a professional and to the court as its officer to take the time required to write well even if you cannot always bill for it.
We leave you with the best tip of all from Justice Ginsburg: “All work and no play make the judge a dull person.” You, too.
1 Staff Attorney, California Court of Appeal, First District. I interviewed Paul on effective appellate briefs for the March 2008 column, which can be viewed here.