scrivener’s error


Mightier

UT Law Professor Schiess has an excellent discussion going on over at his Legal-Writing Blog regarding the importance of proper citation to persuasive legal writing.

By way of fair disclosure, I am an avowed adherent to the “tyranny of the inconsequential,” as insisting upon correct citation has been labeled by some less fond of the practice.

From my experience writing for and editing law journals and clerking for judges, one must of course first put forth a cogent argument. But if you then decide to let the citations take care of themselves, you detract from the credibility you have established by your reasoning. You may still win if you have the better argument or more favorable facts, but I–for one–prefer not to engender snickering in my legal reader, no matter what the outcome of the underlying case.

My background is anectdotal and the sample size insufficient from which to draw statistically significant conclusions, but in my experience, lawyers (usually older and more of the trial variety) who deride other lawyers (usually younger and more of the post-trial variety) for their insistence upon employing correct citation format do so because they wouldn’t have the faintest clue how to cite something properly if you simultaneously smacked them upside the head with the Bluebook, the Greenbook (flawed though the 11th ed. may be), and the MUS.

Moreover, those lawyers I’ve encountered who would never bother to check a citation tend to have evidenced similar diligence in their reasoning as well. Back once upon a time, when it was my job to read briefs submitted by others, it was a very rare occurrence indeed when a brief that jumped out at me as being offensively lax in its citation was inversely impressive for its thoughtful analysis. The converse was also true: rarely were briefs that shone with impeccable citation burdened by slovenly reasoning.

Accordingly, I don’t view correct citation as a nice cherry to put on top of an otherwise impressive argument, or a useful complement to cogent analysis, but instead as the most basic demonstration of one’s elemental understanding of persuasive writing. This is particularly true here in Texas, where an improper notation of the subsequent history of an intermediate appellate case can directly impact the precedential weight that must be accorded the cited case.

Once you’ve lost credibility through incorrect citation, it’s hard to get it back through unassailable logic.

Thx to the Legal-Writing Blog

El Jefe

One might as well treat Justice Scalia‘s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson‘s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of “whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims”] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo‘s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”


Thx to Justice Scalia for his incomparable wit and eloquence.

Defense lawyers sometimes take a jaded views of some plaintiffs’ more outlandish claims of purported injury. On occasion, the defense bar may have even dreamed of filing an answer worded similarly to this one:

* * * NSFW * * *

Nice

This answer, it turns out, was never actually filed and was instead merely an inside joke that escaped into the blogosphere.

Thx to Above the Law

Mightier

Some double entendres should never be put in print. See title, supra.

No, the above quote does not refer to what most non-distaff readers might assume. Instead, it actually describes a problem faced by many contemporary legal writers when attempting to sit down and write cogently.

In a recent article, Bryan Garner and others noted that the press of modern distractions, “including texting, e-mail on a desktop computer, Blackberry messages,” and–dare I say–blogs, lures lawyers into “losing concentration with what they’re writing about,” which ultimately “negatively impacts both the continuity and even the accuracy of their product.”

I, for one, think this is hogwash because … well, dangit, I lost my train of thought.

Thx to Westblog.net and the National Law Journal

El Jefe

Justice Scalia gave his best interview yet the other day with Brian Lamb on C-SPAN’s series, Q&A.

One of the most interesting segments was when Lamb showed Justice Scalia this clip from the Daily Show castigating his 60 Minutes appearance and his vote in Bush v. Gore, 531 U.S. 98 (2000), and then asked for his reaction.

“I watched [the Daily Show] once and that was enough.”

Justice Scalia elaborated further. First, he reminded John Stewart that President Bush was subsequently re-elected in 2004, so blaming his current occupancy of the office, the ongoing war in Iraq, or anything else derivatively-related in 2008 is specious. Second, he recounted how press studies conducted subsequent to the election found that Vice President Gore would have still lost even if he had never brought the election challenge that eventually resulted in Bush v. Gore, and the votes had been counted the way Gore sought. Third, and “penultimately,” Justice Scalia reiterated that the case only came before SCOTUS because Gore brought the suit, so it was he–not Bush or SCOTUS–who “wanted courts to decide the election.”

What was SCOTUS supposed to do when one of the parties (Bush) alleged the Florida Supreme Court had violated the federal constitution, “turn the case down for not being important enough … hardly.” Last, he also reiterated a point I have made as well that the vote finding the Florida Supreme Court violated the constitution was 7-2, not 5-4.

Justice Scalia also hinted at some future books he’d like to write, most exciting of which would be a sequel to his seminal tome, “A Matter of Interpretation: Federal Courts and the Law.”

The discussion ranged from what items are in his official SCOTUS portrait (a copy of–what else–The Federalist, and Webster’s Second International Dictionary (he doesn’t care for the Third edition)) to whether he still smokes a pipe (which he said was a very useful tool during his confirmation hearings to distract attention from what he was saying).

Thx to Convictions, WestBlog, and WSJ Law Blog

How much money does it take to start a record label? A lot I’m sure. But $360 billion?

Suuuuuure

That was the excuse given by a Fort Worth man who tried to cash a check made out for $360,000,000,000.00. He quickly lowered his monetary sights (by about 96 million times), however, posting bail for $3,750.00.

Thx to Above the Law, the FW Star-Telegram, and MSNBC

Masters of the Universe

Here are several more fascinating interviews with both Justice Scalia and Bryan Garner regarding their new book, Making Your Case: The Art of Persuading Judges.

The first three clips come courtesy of NPR‘s own Nina Totenberg, whose interview Justice Scalia and Bryan Garner was featured in three parts on Morning Edition, Day to Day, and All Things Considered.

The second interview is with Bryan Garner alone, courtesty of Thomson Reuters’ blog.

Thx to How Appealing, Res Ipsa, Westblog, and NPR

Batman and Robin

Following up on our earlier discussion of Justice Scalia‘s recent interview on 60 Minutes (available here and here, in its entirety), Justice Scalia and Bryan Garner have also given a fascinating audio interview to the ABA Journal’s Richard Brust regarding their newly-published book, Making Your Case: The Art of Persuading Judges.

The ABA Journal has also posted some great excerpts from the book, including the following snippets.

On the right and wrong way to frame the relief you seek:

Wrong:

The undersigned counsel do hereby for and on behalf of their clients, for the reasons explained hereinbelow, respectfully request that this Honorable Court consider and hereby rule that no issues of material fact do exist in the instant controversy, and that a final judgment be entered in favor of the client of the undersigned counsel (sometimes herein referred to as “Defendant” or “Cross-Plaintiff”) and against Plaintiff.

Right:

Johnson requests entry of summary judgment.

On signposting one’s arguments:

There are many such guiding words and phrases: moreover, however (preferably not at the head of a sentence), although, on the other hand, nonetheless, to prove the point, etc. These words and phrases turn the reader’s head, so to speak, in the direction you want the reader to look. Good writers use them abundantly.

Normally, the very best guiding words are mono­syllabic conjunctions: and, but, nor, or, so and yet. Pro­­­fessional writers routinely put them at the head of a sen­tence, and so should you.

On eliminating jargon:

Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee?

* * *

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party.

On avoiding clichés:

Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness—through overuse—no longer pleases but bores. Such-and-such a case “and its progeny” is a good example. Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t settled; or that something is true “beyond peradventure of doubt.” The test is: Have you seen the vivid phrase a lot? If so, odds are it’s a cliché.

On avoiding unnessecary Latin phraseology:

Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit.

On the careful use of humor during oral argument, Justice Scalia recounts the unfortunate joke told by Texas assistant AG Jay Floyd during the oral arguments in Roe v. Wade, 410 U.S. 113 (1973), in which he began by remarking:

Mr. Chief Justice, and may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word.” No one laughed. Onlookers said that during an embarrassing silence, Chief Justice Burger scowled at the advocate.

On handling a difficult judge during oral argument:

A noted barrister, F.E. Smith, had argued at some length in an English court when the judge leaned over the bench and said: “I have read your case, Mr. Smith, and I am no wiser than I was when I started.”

To which the barrister replied: “Possibly not, My Lord, but far better informed.” Smith, who later became a famous judge as the Earl of Birkenhead, could reportedly carry off such snappy rejoinders with impunity.

We doubt that, but in any case we don’t recommend that you emulate him.

Thx to the ABA Journal and Volokh

His Excellence

In Justice Ralph Anderson‘s recent opinion in Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., No. 4374 (S.C. Ct. App. Apr. 23, 2008 ), he opines:

The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality.

Okay, while I am probably one of the worst offenders of writing in this fashion, even I think this passage is a tad much. I’m not nearly as offended by the use of obscure or big words–I happen to think that modern, simplified language wrongly ignores many more precise if overly-loquacious terms favored of old–as I am by their redundant or sloppy use.

The tipoff for me here is the use of the conjunctive “and” twice in the span of eleven words. There is no elegance in the phraseology, “quiddity and hypostasis” or “quintessence and elixir,” only length. The point would have been much more eloquently made if the author had chosen one term or the other, instead of throwing both in for good measure–twice.

Plus, I like to reserve this kind of florid language for times when you are trying to make a point with either humor or irony. It’s okay to sound pompous in my book, as long as you do so with a wink or some wit. A good rule of thumb I follow is to never use more than two words that your reader would likely have to look up in a single sentence (and then only rarely). If you must or you insist on using such words, spread them out through several paragraphs so they don’t hit your reader all at once. Here, Justice Anderson used six obscure terms in two adjacent sentences.

Of interest, one commentator over at Volokh notes that Justice Anderson is notorious for such jeremiads (sorry, I couldn’t resist).

Thx to Volokh and the South Carolina Appellate Law Blog

El Jefe

This Sunday evening, be sure to catch Justice Scalia’s interview with Lesley Stahl on 60 Minutes.

In it, Justice Scalia reiterates a point I and others have made, that the core of Bush v. Gore, 531 U.S. 98 (2000)–the equal protection argument–was not even a close call for the Court, which decided 7-2 that the Florida Supreme Court‘s voting scheme violated the equal protection rights of Florida voters.

Justice Scalia also reminded Stahl that it wasn’t SCOTUS who magically intervened in the 2000 election, but it was instead Vice President Al Gore who put the issue before the courts by filing suit in the first place. As to granting certiorari, Justice Scalia echoed his earlier comments regarding the importance of the case (where he chided a questioner, “[d]o you really think we weren’t going to grant cert.?“):

What are we supposed to say–“Not important enough?”

Required reading

Of further note, the primary purpose of Justice Scalia’s agreeing to sit for an interview was to promote his forthcoming book with Bryan Garner, entitled, Making Your Case: The Art of Persuading Judges. The book–due out next week–is an in-depth examination of the art of “argumentation, rhetoric, and judicial persuasion.

Thx to How Appealing and Law.com

Mightier

The plain-language movement is not isolated to legal circles, journalists are trying to eradicate overly-florid language as well.

Last week, one of The Hill‘s senior editors sent the following memo to staffers regarding proper usage of commonly misused words.

From: Hugo Gurdon
To: [REDACTED]
Sent: Thu, 17 Apr 2008 10:42:42
Subject: good usage

I need to repeat some guidelines.

Please use:

“before” rather than “prior to”

“supports” rather than “is supportive of”

“attended” rather than “was in attendance at”

“for” instead of “in favor of”

“lunch” instead of “luncheon”

“senior” or “leading” instead of “top”

Avoid “upcoming” and “potential” and “current.” They are usually
redundant. There are several unhappy examples in today’s paper.

Thanks, Hugo

Agree with most of these except where “before” may be repetitive, I’ll usually substitute “prior to” just to lessen the monotony. Also, to my mind, a “luncheon” connotes a formal lunch–usually accompanied by a speaker of some kind–which is a very different concept than a mere “lunch.”

Thx to FishBowl DC

The A-Team

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

Mightier

Ok, this is admittedly not the most riveting topic for late on a Friday afternoon, but so be it.

A recent exchange over at Professor Wayne Schiess‘s legal-writing blog has spurred me to opine regarding the comparative merits of drafting multi-sentence, 75-word issues in one’s issues presented, as opposed to sticking to the more traditional, single-sentence issue favored of old.

The new approach–labeled the “deep issue” and favored by none other than the tireless and brilliant Bryan Garner and Professor Schiess (who is the Director of the UT Law legal-writing program)–aims to reduce the awkward, cluttered phrasing that oftentimes results when lawyers try to cram too much into a single-sentence issue presented.

However, I have despised the advent of the deep issue for many years now because I view it as defeating the very purpose of appellate briefing.

The point of appellate writing is to distill complex legal issues down to a cognitively-manageable subset. Hence, appellate briefs should strive to raise only a few (3-5) issues upon review instead of the 20 that seemed important at trial (at least to trial counsel).

My view is that deep issue briefing is lazy and sloppy because it forces the reviewing court to distill the salient issue from the opus presented by the advocate–in essence to do the drafting work the attorney should have done. Foisting one’s singular function as an appellate attorney onto the appellate panel members you seek to persuade does one’s clients no favors.

And confining an issue presented to a single sentence is not–by definition–awkward, it just takes a little more effort and skill to get there. A commenter to one of Professor Schiess’s posts makes the great point that:

A block of single-spaced, multiple-sentence issues can be a chore to read. By contrast, if only the key issue is presented Garner-style and the others are single-sentence (and designed just to convey the general idea and preserve error), you have a much better shot at having the Court remember how you want them to frame the key issue.

Moreover, the selective use of single-sentence sub-issues helps to clearly delineate the hierarchy and magnitude of the issues presented.

By way of example, every brilliant legal opinion you’ve ever read always had a knack for boiling each question on appeal–no matter how complex the case–down to a single, incisive sentence. If the Court is already going to draft such a sentence from the briefing, why not ingratiate one’s clients to the Court by providing a reasonable, succinct starting point for the Court’s subsequent efforts?

Thx to Professor Schiess’s legal-writing blog, and Bryan Garner for his innumerable contributions to the art of legal writing