I have been asked to post something about legal writing. I don’t know a damn thing about legal writing, as this blog constantly proves. But, hey, ask and you shall receive.
A word about the literary form: I prefer the “top-ten” form for trenchant legal analysis.
Awhile back A while back (I have no clue which one is correct), and using this form, I wrote a piece about their Eminences and the mess they made of the federal Sentencing Guidelines. In some circles, it was well-received. Therefore, and proving that you can’t teach an old judge new tricks (or shticks), I once again adopt the genre for this series of profound musings.
So, here are my top ten hints for submitting briefs to me and other all-knowing beings who ascend the federal trial bench, both literally and figuratively:
10. Get a good editor. Never send me something unless someone less dumb than you has read it first. Jan, one of my brilliant career law clerks, is editing this piece. Sometimes she annoys me though. Just now, I really wanted to use the word “retarded” rather than “dumb.” Jan said she’d quit if I did, so I relented. I can’t stand the thought of doing my own work.
9. Burn anything that Bryan Garner has written. He really knows his stuff, but Strunk and White’s The Elements of Style said it all. Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules. Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.
8. Unless you are retrograde (Jan’s word), or the judge won’t allow it, hyperlink to cases and citations to the record. Remember, 9 out of 10 times a law clerk—not the trial judge—is the only one closely reading your stuff. (Oh, don’t pretend to be shocked!) The easier you make it for the law clerk, the less you have to worry that the clerk will go wild.
7. Justice Scalia writes smack. You can’t. Justice Kennedy waxes grand eloquent. You can’t. Justice Breyer writes simply. You should.
6. Is it too much to ask you to read and follow the local rules? Remember the venerable Latin legal maxim: Rules are the opposite of sucks.
5. Please don’t “bitch-slap” your opponent. It only makes me want to do the same to you, but in super slow motion.
4. If you send me a brief knowing that you will lose, but you are hoping to “educate” me, you are, in the words of the greatest of all legal minds, Gene Wilder, one “stupid, ignorant son of bitch, dumb bastard.”
3. The best brief disproves the aphorism that “legal writing is to writing as military music is to music.” When accepting the American Society of Legal Writers lifetime achievement award, Justice Scalia was correct to say that he does not “believe that legal writing exists.” Then again, Scalia really likes Jack Benny jokes.
2. I have always appreciated the writing style used in the “Dick and Jane” books. In addition to being vaguely titillating (which is always a plus), even I could understand the prose without having to read a sentence twice. I wish that were true of most of the verbiage you send me.
1. It would be nice if you gave me a concise and accurate statement of the facts backed up by citations to the record and addressed to the elements of the case. The Court of Appeals does not give a rat’s ass about what I think of the law, but it does care (at least a little) what I think of the facts. Comprende? (For emphasis, please see use 3, and example 2, in the Urban dictionary.)