There may be an impulse to make a brief intricate, detailed, and complex in order to prove a point, but that method will backfire. Instead, the Supreme Court justices prefer simple clarity. Here are a few tips on how to accomplish clean copy when writing a legal brief.
Legal writing expert Bryan Garner has had the good fortune to sit down with many Supreme Court justices and ask them about their writing do’s and don’ts. Garner has made available the transcript of his interviews with the Supreme Court justices in a tome titled “The Scribes Journal of Legal Writing.”
Here are a few excerpts from the transcript:
Chief Justice John Roberts, Jr. really doesn’t like reading “which” in a brief, when “that” will do. “I don’t know why,” Roberts confessed to Garner. “But when I see sentences with ‘which’ in them, it slows you down … It starts to sound like one of those old 19th-century contracts — which and wherefore. ‘That’ just seems to have a better pace to it. I actually find you can usually get rid of both of them and go with the gerund.”
Justice Antonin Scalia offers his test for deciding whether legal lingo should be excised from a brief: “If you used the word at a cocktail party, would people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous. It’s legalese. ‘This case’ would do very well.”
Justice Anthony Kennedy dislikes the use of trendy words. “I do not like nouns that are turned into verbs,” he told Garner. “I ‘task’ you or I was ‘tasked’ with this assignment or I was ‘tasked’ with this opinion. A ‘task’ is a noun; it’s not a verb. ‘Impact.’ This ‘impacts’ our decision; ‘impact’ is a noun, and it seems to me trendy.”
For Justice Ruth Bader Ginsburg, a top priority in writing is honesty. “If a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted — the rest of it,” she said in her interview. “And lawyers should remember that most of us do not turn to their briefs as the first thing we read. The first thing we read is the decision we’re reviewing. If you read a decision and then find that the lawyer is characterizing it in an unfair way, we will tend to be impatient with that advocate.”
All of the justices, in one way or another, urged lawyers to write succinctly and resist the urge to write to the maximum allowed length. Justice Stephen Breyer put it this way: “Don’t try to put in everything. Use a little editing, I would say. If I see something 50 pages, it can be 50 pages, but I’m already going to groan. And I’m going to wonder, Did he really have to write that 50 pages? I would have preferred 30. And if I see 30, I think, Well, he thinks he’s really got the law on his side because he only took up 30.”