Top ten legal writing hints when the audience is a cranky federal trial judge

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 notbelieve 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.)
RGK
Photo credit:  Legal text, written in a Gothic hand.  Penn Provenance Project's photostream per Creative Commons license.

Photo credit: Legal text, written in a Gothic hand. Penn Provenance Project’s photostream per Creative Commons license.

45 responses

  1. Judge:

    Because my brief is not going to succeed, let me offer the following for your (or your editor’s?) consideration:

    http://www.merriam-webster.com/dictionary/grandiloquence

    As for the substance, I think a lot of it applies to the other side as well. (In my early days, my court’s brilliant career law clerk emphasized to me [with a delicately-wielded sledgehammer] the need to follow #7, #6, #5, and #2, among other things).

    • Dear J. Law,

      I got to thinking about your comment. You deserve a more detailed response.

      You refer me to a dictionary regarding my use of “grand eloquent” and Justice Kennedy. Who are you, anyway, Scalia?

      Anyway, perhaps I intended to use “grand eloquent” intentionally (to catch the eye of dictionary freaks like you and Scalia) or perhaps Jan (and Gabi) failed to catch it. Which was it?

      The use of “grand eloquent” is odd, but not wrong. I am odd, and often wrong, but that’s a different story.

      David Daiches was born in 1912, and he died in 2005. His childhood and youth were spent in Edinburgh where his father, Rabbi Dr Salis Daiches, was a distinguished member of the Jewish community. These formative years are described in an autobiographical memoir from 1956, Two Worlds. Educated at Edinburgh University and Balliol College, Oxford, with postgraduate degrees from both Oxford and Cambridge, David Daiches became a leading scholar of the English language.

      He taught or held visiting posts at Balliol College, the University of Chicago, Cornell University, Jesus College, Cambridge, Indiana University, the University of Minnesota, McMaster University in Canada, Wesleyan University in Connecticut, and the University of California. He was the founder of the English Department at the University of Sussex. He traveled widely and received further honors from the Universities of Edinburgh, Glasgow, Stirling and the Sorbonne. He wrote on a host of subjects, from Virginia Woolf to Willa Cather, from Burns, Scott, Boswell and Stevenson to Milton, Moses, and the Bible. He produced distinguished literary and critical histories and a (wonderfully) popular study of Scotch whisky.

      In his beautiful book, Two Worlds, Daiches uses the words “grand eloquent” at page 32 to refer to his father’s orations on Judaism. Those “grand eloquent” orations seemed to Daiches to concentrate too much on ritual while missing practical concerns. Perhaps, that is the sense in which I referred to Kennedy waxing “grand eloquent.” Or not.

      All the best.

      RGK

  2. I stand corrected, Your Honor.

    PS: Google Books is an incredible resource but I keep forgetting about it.

  3. I still enjoy reading about how to produce legal writing though I no longer write. Thanks for reminding me about the fun and challenge of legal writing, my true passion.

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  6. I believe that “well-received” in this context should not be hyphenated. Otherwise, delightful.

    • Nicole,

      Let’s blame Jan, the law clerk. Maybe the grammar checker thingie on this platform made me be do it. Or possibly, it was intentional, like “grand eloquence,” just to see how many smart lawyers would find the little gem. Not likely, but certainly “plausible” within the meaning of Twombly.

      Most importantly, please remember that one of the great things about being a federal judge is that you never have to say you’re sorry. All the best.

      RGK

    • Nicole,

      Let me be serious for a moment. Justice O’Connor is not a favorite of mine, but I am also sure that bothers her not at all. But, here is my serious point. Federal judges make mistakes all the time. When we do, we should clearly own up to them. God knows I have made big blunders. I hope to be around long enough to make more.

      While the Justice’s apology may have come too late, my criticism is that she didn’t really apologize. If she was wrong (and I am agnostic on that point), she was wrong. Its that simple. She should say so in plain and unequivocal language.

      Lastly, any judge or justice who truly cares about his or her “legacy” is a moron. In the end, only a tiny number of (really strange) people give a hoot about what an individual judge or justice did or did not do, and, frankly, that is as it should be. Do your job, enjoy the good gig you stumbled into, and then die. Nobody, save for your friends and family, will give you much, if any, further thought.

      All the best.

      RGK

  7. Thanks for this post.

    I’ve always been fond of George Orwell’s six rules found within “Politics and the English Language” —

    (i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

    (ii) Never use a long word where a short one will do.

    (iii) If it is possible to cut a word out, always cut it out.

    (iv) Never use the passive where you can use the active.

    (v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

    (vi) Break any of these rules sooner than say anything outright barbarous.

    Thanks again,

    Matt

    • Matt,

      Thanks very much. His top 6 list is far better than my top 10.

      At the end of his 1946 essay “Politics and the English Language,” Orwell also says, “political chaos is connected with the decay of language” and “one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy.” I like that too.

      All the best.

      RGK

    • Dear Dean Borchers,

      Like my favorite philosopher Bart Simpson says, simple is good. As for Jan, I never pass along compliments to her ’cause its all about me. But,if I would have, I’d bet she’d be touched and very pleased by your kindness. Alas, poor thing will never know.

      All the best.

      RGK

      • Somehow this reminds me vaguely of the Simpson’s ride at Universal Studios, which is a virtual roller coaster. Some evil being is chasing them, and Marge says to Homer: “Look, he’s trying to kill the kids!” And Homer says: “It just keeps getting better and better.” I find this hilarious, but my kids do not. But it really is all about me. Because if I didn’t have a job, there would be no trip; so if I want to find it funny, well that’s just too damn bad.

        • Dean Borchers,

          You have now unearthed the only good reason to travel with children to any theme park–that is, to terrify the little critters. I wish I would have known about this new axiom when my urchins were still urchins.

          All the best.

          Bart

  8. Insufferable as he may be, Garner’s advice is far better reasoned and more consistent than Strunk and White’s. Some [http://chronicle.com/article/50-Years-of-Stupid-Grammar/25497] have even sought to completely discredit The Elements of Style.

  9. As a rising 2L, I’ve just got to say that I wish this had been published a year ago. You could have saved me a whole lot of time spent struggling to stay awake in Lawyering Seminar.

    • Dear Matt G,

      What the hell do they teach in a “Lawyering” seminar?

      Anyway, I have a tip. The most important thing about learning to be a lawyer is learning to hold your liquor. After that, it’s almost painless.

      All the best.

      RGK

  10. Great post. As a career law clerk, I’d like to say three things:

    (1) Points 5,6,7, and 10 – so true.

    I want to adopt as my new mantra, “Rules are the opposite of sucks.” How much clerical and law clerk – and even judge – time is spent every day fixing things that have been e-filed incorrectly, and in ever more inventive ways? Way too much. Why? Because so many don’t read the rules.

    (2) Re: Points 8 and 10, thank you for your generous comments re: law clerks and career law clerks. This one from an earlier post is my favorite, a point I hadn’t previously heard anyone articulate–
    “A judge can have valued career law clerks without ceding to those clerks the judge’s authority as a judge. In no other business or profession would we make an argument that the decision maker ought to be helped by the inexperienced because the decision maker is too foolish or weak to make his or her own decisions if served by an experienced adviser. Bluntly put, such an argument is rubbish.”

    (3) I love Gene Wilder. See, e.g., “Blazing Saddles,” “Young Frankenstein,” and “The Producers.” I rest my case.

    • Dear Dazed and Confused,

      Thanks for kind remarks. A lot what I write is tongue-in-cheek, as I know you know. The bit about career law clerks was heartfelt, however. And most especially,thanks for your service.

      All the best.

      RGK

  11. I completely agree with: “Never send me something unless someone less dumb than you has read it first.” For my legal writing, however, 30+ years of experience has taught me that this should read: “Never send me something unless someone less dumb than you — and who knows absolutely nothing about the case — has read it first.” My problem is that I know what I am trying to say, which is not the same as actually saying it clearly or even at all.

    Therefore I give what I consider my final draft to someone who knows nothing about the case for his or her review — I even use a non-lawyer if it does not involve a detailed legal argument. If what I have written makes sense to the reviewer, it can go in. If I am not clearly stating my points, I still have work to do.

    Thank you for your article. I am distributing it to our associates.

    VK

    • Dear Anonymous,

      You are absolutely right–less dumb, but ignorant, is the way to go when selecting an editor. In many places, however, that may be a tall order.

      More seriously, the point you make is an excellent one. Incidentally, one can profitably do the same thing with oral statements, like openings and closings to a judge or jury. Select someone less dumb than you, but ignorant of the case, and see what they think of your presentation. Be sure to ask them to tell you what they didn’t understand. If you are any damn good at all, style will not be a problem, but lack of clarity almost always crops up. That’s why you want an editor or listener.

      Again, thanks for your very important contribution. All the best.

      RGK

    • Shouldn’t we also change Rule #10 to read: “Never send me anything…” (not “something”)?

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  13. While speaking on a seminar panel recently in Florida, the moderator called on me to comment upon an order and opinion written by one of the U.S. District Judges whose district overlaps my state circuit.

    I tend to be blunt, if not witty, so I said “This is a perfect example of why a former federal prosecutor should not be writing complicated opinions dealing with state insurance law coverage. It is nearly incomprehensible to me.:” And I practiced insurance defense law for 15 years before I was on bench. There was scattered applause among the 300+ in the audience.

    I know the judge fairly well. He is likeable, smart and capable of writing an opinion without all the fluff that could be read and understood in 30 minutes. Instead, we had an attempt to write an opinion worthy of Flex Frankfurter, but with a strike out.

    Judge Rusty Johnston
    13th Circuit
    Mobile, Alabama

    • Dear Judge,

      That’s a great story. Just ’cause you got put on the federal bench does not make you anything more than lucky.

      One of the best stories I ever heard was told by Judge Richard Arnold. (Richard was number one at everything he did and served as a Supreme Court law clerk.) Richard worked for a US Senator. The Senator wanted him nominated to be a federal district judge. One day, Richard and the Senator got on the Senate elevator with the Chair of the Judiciary Committee (a crusty, but long serving southern gentleman). The Senator told the Chairman that he wanted Richard to be nominated, and jerked his thumb at Richard to indicate that the insignificant being he was talking about was on the elevator with them.

      When the elevator got down to the ground, the Chairman looked at Richard and said, “After you, Judge.” So, thereafter, Richard claimed that he was the only federal judge to have ever been confirmed in an elevator.

      Richard later went on to serve as Chief Judge of the US Court of Appeals for the Eighth Circuit. His writing style, while elegant, was clear, concise, and even simple. President Clinton would have put Richard on the Supreme Court but for Richard’s cancer troubles. Jeffrey Toobin recounts in his book that Clinton cried when he called Richard to tell him that Richard would not be nominated to the Supreme Court because of the President’s fear that Richard’s cancer would come back (as it did).

      Richard Arnold was what any judge should be–kind,gentle,humble and unassuming. Richard is gone now, and how we miss him.

      All the best.

      RGK

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  15. Having read your post, comments and their repeated references to Jan, I’m reminded of perhaps the most important, universal advice anyone can learn: have a scapegoat handy at all times.

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