Texas’s own Bryan Garner has compiled an extraordinary series of interviews he has conducted with eight of the nine sitting SCOTUS Justices (sans Justice Souter) regarding their views on legal writing, appellate advocacy, and the utility of law clerks.
The two Justices who spent the most time discussing legal writing? Chief Justice Roberts and Justice Thomas. The Justices who had the least to say about legal writing? Justices Stevens, Ginsburg, and Alito.
Below, I’ve compiled the Justices’ top suggestions for better writing, as well as the pet peeves that drive some of the Justices mad when they see such errors in the briefing:
* Every Justice condemned the use of legalese. While I agree this approach generally, I do believe there are certain terms of art and certain language that may be disfavored by the modern writer, but that are still invaluable and often more precise than their modern counterparts.
* Almost every Justice interviewed cited Justice Robert Jackson as the best writer the Court has ever had.
Chief Justice Roberts
* Likens trying to read a poorly written brief to hacking through a jungle with a machete.
* Garner notes the fascinating lineage established by Chief Justice Rehnquist clerking for Justice Jackson, and then Chief Justice Roberts clerking for Chief Rehnquist.
* Doesn’t have any “fetishes” about particular language, just values clarity and “some degree of drama” in the briefs he sees.
* Reveals Chief Rehnquist would stop counsel during oral argument if they misused a word.
* Doesn’t think it particularly annoying if counsel mistakenly calls a SCOTUS Justice “Judge,” or a circuit appellate Judge “Justice.” Describes how when he was in private practice, he would always go to the appellate court he was arguing before a day early, observe the oral arguments, and ask the bailiff how the judges preferred to addressed, whether it was “your honor, “justice,” or “judge.” I would take that as a hint to refer to SCOTUS Justices as “Justice” instead of “Judge.”
* If he has a pet peeve, it is probably sentences that contain “which;” just thinks it slows down the pacing of a sentence. Doesn’t feel the same way about “that,” however.
* Advises against telling a Justice during oral argument “I’ll address your question in just a moment,” when asked about, say, point four while discussing point one. Also recommends practitioners practice giving their argument in varying order so that awkward transitions from subsequent points to earlier points can be avoided.
* Recommends counsel give a nearly-finalized copy of the brief to a non-litigator to review to use a litmus test as to whether it is clear enough.
* You should be able to describe the case in simple English to a family member in the span of five minutes. If not, you’re not ready for oral argument.
* When practicing oral argument, make sure you have a colleague who will be the most skeptical of your position serve on the moot court panel.
* Recommends lawyers don’t just use prior briefs as templates for future ones, make sure your brief is accurate and tailored to the case and the panel.
* Almost always added an introduction to his appellate briefs, even when local rules didn’t require it. He notes he always checked with the clerk first.
* Almost every brief he’s read could have been shorter.
* The most effective briefs and oral arguments are ones that highlight the weaknesses in their own argument, instead of attempting to conceal them.
Justice Stevens
* Writes the first drafts of his opinions, with input and help from his law clerks. He does so because he feels doing so forces the Justice to think through and consider the case more fully. I wholeheartedly agree with this point–no matter how many times I’ve read a brief or the record, I don’t really understand a case until I sit down and start writing the brief on it.
* Says that law clerks are largely responsible for today’s longer opinions.
* Views Justice Cardozo as perhaps the best writer ever to sit on the Court.
* Doesn’t mind typographical errors in briefs and finds such errors in almost every brief he reads.
Justice Scalia
* Credited a change in his opinion writing to his father, a linguist who taught romance languages in college, and who scolded Justice Scalia (while he sat on the D.C. Circuit) for using the standard phraseology favored at the time by his court to conclude its opinions with the phrase: “[f]or the foregoing reasons , it is hereby ordered that the judgment of the district court is” either “affirmed” or “reversed.” His father pointed out the proper phrasing of that sentence is the “judgment of the district court be” either affirmed or reversed.
* Thinks that most law review articles are “much too heavily footnoted.”
* Doesn’t like using “instant case” instead of “this case.”
* Frowns upon using “nexus” instead of “connection.” We assume this pet peeve is not directed towards briefs discussing the Nollan “essential nexus” test.
* Dislikes using “[x] informs [y]” to describe, for example, the effect an amendment has on a particular issue.
* Doesn’t like using “and its progeny.”
* Does not like beginning a sentence with “however,” instead of, for example, “[T]hat is not true, however ….” I am a major offender of this convention. Justice Scalia admitted his fondness of beginning a sentence with “but,” and my preference is to use “however,” in place of “but” in such instances.
* Disfavors usage of legalese such as: “in addition” in place of “so,” “notwithstanding” instead of “but,” and “consequently” instead of “so.” Again, I much prefer the legalese alternatives here because I think they convey a more precise concept. If they sound obnoxiously legalistic, so be it, we’re lawyers after all.
* A rule-of-thumb he recommends briefers use to determine whether a certain phrase is too legalistic to use is whether the same phrase, if uttered at a cocktail party, would engender “funny … looks.” I fail this test all the time, both in writing and at cocktail parties.
* Cautions the proper usage of “susceptible to” to indicate vulnerability and “susceptible of” to indicate capacity.
* Recommends hyphenating phrasal adjectives: “purple people-eater” to indicate a people-eater that was purple, and a “purple-people eater” to indicate an eater of purple people.
* Don’t ever state–in response to a question from the Court–”that’s not my case.” One of his biggest pet peeves.
* Do not use the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” He HATES this and thinks it makes the writer sound “illiterate.”
* Reveals he probably discusses the cases with his law clerks more than he does with his fellow Justices.
* Clerks often do the initial draft of his opinions.
* Reviews and revises the opinions at least five times before it goes out the door.
* Oral argument can’t lose a case for a petitioner, but it can win it because a persuasive oral argument can convince a Justice on the fence to come down on one side or the other.
* Only argue your strongest point at oral argument–no matter how many pages in your brief were devoted to other perhaps more elaborate points–because you may never get off your first argued point.
* The only time you know you’re not wasting time in oral argument is when you’re responding to a question.
* The statement of facts should contain all the factual elements that would make a judge sympathetic to your cause without being “too obvious” about it.
* Most important in the statement of the facts is to be rigorously accurate in your record citations.
* Purpose of a reply brief is to reply, not repeat.
* If there are fewer pages, he will pay more attention.
* Has seen cases lost because counsel did not seek certiorari on the precise question that would have won for them.
* Doesn’t–on balance–weigh the statement of facts as heavily in comparison to the rest of the brief as some others might.
* Thinks the summary of the brief is only important if one intends not to read the brief. Hilarious and I agree with this completely. There are other Justices who stated they think the summary is the most important part–to show the reader the point of the brief right up front. However, I think Justice Scalia is absolutely correct that the utility of this section is inversely proportional to whether one reads the brief itself.
* Most crucial is the crafting of the issues: SCOTUS doesn’t care who wins or loses but what the effect of this case will be on hundreds of others: “I’m not about to do justice for your client at the expense of creating injustice in hundreds of other cases that will never come before me that I will never see.” One of the single most insightful observations about appellate practice that is lost on trial lawyers, who too often think an appellate panel cares about what happened at trial, instead of how what happened at trial–if left to stand–will impact the jurisprudence as a whole.
*Cites Justice Jackson’s dissent in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) as being a particularly useful example of the value of dissenting and of good writing as well.
Justice Kennedy
* Thinks all good briefs must be: lucid, cogent, succinct, interesting, informative, and convincing. Think that’s about as good of a summary of the ideal brief as you’re ever going to get, and would probably serve as a good yardstick by which to measure your nearly-finished product.
* Reveals that his father would take him out of school to travel with him to trials, where young future-Justice Kennedy would sit at counsel table with his father.
* Thinks that One Day in the Life of Ivan Denisovich by Aleksandr Solzhenitsyn should be required reading for law students. Yeah, I haven’t read that either. Going to pick up a copy of that at Half Price Books this afternoon.
* At oral argument, be respectful of the Court, but not patronizing.
* Reveals that a Justice may be harder on the side they think is right because they might be tasked with writing the opinion and want help from counsel to work through the thorny issues. May also be asking a hard question to convince other colleagues who are wavering.
* Echoes Justice Scalia’s pet peeve of responding to a hypothetical question with the retort, “that’s not this case.”
* The cert. petition must convince the Court that the problem complained of is systemic.
* Doesn’t like adverbs in legal writing (i.e., prefers “with more care,” instead of “more carefully”). Have to confess I use -ly adverbs a lot, will have to see if I am able to configure a sentence without them. Think you can use them skillfully though, and it intimidates me to think of abandoning them altogether.
* Thinks “that” is overused and interrupts the flow of a sentence. Agree with this wholeheartedly.
* Doesn’t like “ize” words (i.e., “incentivize”).
* Doesn’t use commas after prepositional phrases (i.e., “in this case we are called upon to decide”). His best argument with which no can quibble against using commas in this fashion is his quote to the Gettysburg Address, “[f]ourscore and seven years ago our fathers ….”
* Also doesn’t like sentences to begin with, “moreover,” “however,” etc.
* Thinks “focus” is overused.
Justice Thomas
* Values simplicity and clarity in legal writing. Says that in order to achieve that, one must have the patience to go through several drafts of the document and the humility to receive feedback from editors.
* Tells his clerk the genius in writing is having a “ten dollar idea in a five cent sentence,” as opposed to a “five cent idea in a ten dollar sentence.”
* Says the briefs written by Judge Bork and Chief Justice Roberts were some of the best he’s seen.
* Says cramming every conceivable argument into the fifty pages allotted is much less effective than expounding fully on less issues in a clear fashion in just twenty pages.
* Thinks the Court asks too many questions at oral argument. This comes as no surprise.
* As a practical matter, the argument is settled in the briefs.
* Says he doesn’t ask questions at oral argument because there are already “too many” questions asked. Thinks oral argument should be a conversation with the Court, as opposed to the cacophony of questions thrown at counsel currently. He views the opportunity to say one’s peace at our country’s highest court as more important than bombarding counsel with numerous questions.
* Says his mind is almost never changed by oral argument.
* Chief Roberts was the best oral advocates he ever saw argue before the Court.
* Thinks the summary of the argument is the most important part of the brief.
* Doesn’t read the jurisdictional statement or the statement of the facts. Because the court of appeals has already included the facts in its opinion, he prefers to read that. His view is the Court granted cert. on a legal question, and so the focus should be on the legal argument. Have to admit that I used to follow this convention to an extent as well while clerking. I would read the lower court’s recitation of the facts first to find out what happened, and only then read the parties’ versions of the statement of facts to see if they differed from the court’s version. Agree that the only unbiased presentation of the facts is likely going to come from the court below.
* The question presented in the opening briefs should match that posed in the cert. petition. Doing otherwise hurts the advocate’s credibility before the Court.
* Prefers questions to be broken up into shorter sentences as opposed to one laboriously long, “[w]hether [x] … then … [y]” statement. I am not shy of my displeasure with multi-sentence issue statements, but agree with Justice Thomas’s dislike of long issue statements, no matter how many or how few sentences are used.
* Is not fond of public policy, “Brandeis-briefs.” Thinks it takes away from the legal argument.
* Not fond of parentheticals.
* Doesn’t think it matters the political affiliation of a clerk or a Justice (i.e., a “liberal” Justice should have at least one “conservative” clerk, or vice-versa). Does think, however, that it is “tempting fate” to have someone working in your chambers who is “fundamentally at odds” with a Justice’s views on interpretation or construction of either the Constitution or statute at issue.
* His favorite SCOTUS writer is Justice Harlan (first and second on his list by the way). Justice Thomas credits much of his admiration for Justice Harlan as arising from Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537, 553 (1896) (Harlan, J., dissenting).
Justice Ginsburg
* Thinks that most multi-prong tests devised by courts are really the work of over-eager law clerks.
* Was an admirer of the late U.T. Law professor (who held the Chair named after himself), Charles Alan Wright’s writing.
* Views Chief Marshall and Justice Holmes best the best SCOTUS writers, also admires Justices Brandeis and Jackson.
Justice Breyer
* Always writes at least two drafts of his opinions from scratch before they go out the door.
* Cites Justice Jackson as best SCOTUS writer. Thinks very highly of Justices Cardozo, Holmes, and Brandeis as well.
* At oral argument, make sure you address your opponent’s strongest argument, if nothing else, instead of insisting on regurgitating your strongest point. Absolutely a brilliant point, the Justices know what your strongest points are, and if they are strong, they likely are not concerned by them. An appellate advocate’s task at oral argument is too winnow down his or her opponent’s strongest points.
* Always make an effort to answer every Justice’s questions, because the Justice will likely focus on that issue whether he gets an answer to it or not.
* Prefers thirty-page briefs to fifty-page briefs. Wonders every time he sees a fifty-page brief, “did they really need all fifty pages,” and conversely assumes if one submits a thirty-page brief, “the law must really be on their side.”
Justice Alito
* Answering questions is the most important aspect of oral argument.
Thx to Bryan Garner for conducting these interviews and making them freely accessible to the public, to the eight Justices who were so candid in their relating their insights, and to Convictions
