In case you missed the latest issue of The Scribes Journal of Legal Writing, it features interviews with eight Supremes who were somehow snookered into doing what’s basically an infomercial for Brian Garner, one of the leading impresarios of the CLE circuit.
The legal writing how-to industry is based on the mystique that a well-written brief wins the case. Just like if you’re good all year, Santa brings you toys. And bad writing loses cases, just like God punishes people who lie under oath.
Another delusion is that, if you go around asking judges what they look for in a brief, sooner or later one of them will reveal the magic formula, like Samson telling Delilah that his strength came from his hair.
“Don’t tell a soul,” the pigeon will say, “But all of us judges take a secret oath to grant every appeal where the brief has less than twenty footnotes and no sentence begins with a conjunction.”
In our limited experience, judges’ advice usually consists of such nuggets as, “be clear and concise” and “always prepare for oral argument.” Very helpful if your briefs are modeled on “Finnegan’s Wake” and you never think about your argument until you get up to the podium.
Indeed, in our crankier moments, we’ve felt that judges have some nerve pretending to be interested in good writing when most of our briefs are read only by burned-out functionaries and callow interns dutifully turning them into pablum for a bench memo.
For the most part, the Supremes’ interviews obligingly provide the CLE sound bytes suggested by Garner’s leading questions, such as “how important is it that lawyers write well?” Ginsburg agrees that law should be a literary profession, while Breyer agrees that it’s best to begin by writing an outline, giving as an example the philosopher Wittgenstein whose ideas are understood by about five people in the world.
Kennedy doesn’t like adverbs. Scalia goes into conniptions over lawyers who say “cite to” instead of “cite.” He warns that failure to hyphenate purple people eater causes confusion about whether the people-eater is purple or the eaten-people are purple. We think this is ridiculous, since there’s obviously no such thing as purple people.
Alito, when asked how he uses law clerks, answers that they decide the cases and tell him how to vote. We had to read that over several times, but that’s what he says.
Stevens, asked about the importance of intellectual honesty in advocacy, tells about an Attorney General who was “so bad” at the oral argument that the court clerks researched better arguments so he could win the case. So much for wasting your money on legal-writing CLE’s.
Thomas never reads the statement of facts in a brief – what for? – they’re far more reliably set out in the decisions by the lower courts who, he explains, aren’t “advocating a position. They’re not trying to push the law in a particular direction. They’re judges.”
He likens judges to engineers giving a neutral description of an electric grid. “And that’s the way I see judges – just, here’s what we think, here’s the case, here are the facts, we’re not upset, we’re not trying to skew the facts in any way. So they’re the honest broker in the process.” On what planet did this man practice law?
Thomas interestingly volunteers that he grew up speaking Geechee, a form of Creole, and didn’t speak standard English until he was twenty-two. So it’s almost refreshing when he’s asked, “Would you describe yourself as a word lover?” and instead of citing to Wittgenstein or even the Purple People-Eater, answers, “No. I like buses and football and cars.”
Roberts’s interview, to give the devil his due, has some provocative ideas, such as not to start the oral argument with, “the issue in this case is blah, blah, blah.”
Which is food for thought, since that’s how we’ve always begun our arguments. And we actually say, “blah, blah, blah.”