Why Words Can Be Like Ugly Cravats: Justices Dish on Legal Writing

U.S. Supreme Court

Why Words Can Be Like Ugly Cravats: Justices Dish on Legal Writing

Posted Mar 10, 2008, 10:30 am CDT
By Debra Cassens Weiss

Eight U.S. Supreme Court justices come clean about their legal-writing pet peeves and their opinion-writing philosophies in “raw and unvarnished” videos posted to a linguist’s Web site.

Lawyers who specialize in Supreme Court advocacy are scouring the videos, posted at LawProse.org, to divine the justices’ likes and dislikes, Legal Times (sub. req.) reports. The interviewer is Bryan Garner, editor-in-chief of the last two editions of Black’s Law Dictionary and president of a company that provides training in legal writing.

Chief Justice John G. Roberts Jr. reveals in his video that he hates lengthy citations to websites and even lengthier briefs. “I have yet to put down a brief and say, ‘I wish that had been longer,’ ” he says.

Justice Anthony M. Kennedy, for his part, is irked when lawyers turn nouns into verbs by tacking on “-ize” at the end, as in “incentivize.” Those kinds of words are “like wearing a very ugly cravat,” he says.

In the same vein, Justice Antonin Scalia states that he abhors legalese. He advocates a cocktail party rule of thumb—if a word or phrase would draw strange looks at a cocktail party, don’t use it.

Scalia, known for his vivid writing, tells Garner that a good opinion has personality. A dissent may need to be hard-hitting to make its point, while a majority opinion is precisely crafted to help courts decide future cases.

Justice Stephen G. Breyer, on the other hand, believes an opinion is part of our system of democracy, rather than an intellectual pursuit. Because the public needs to understand the ruling, clarity trumps metaphor or vivid language.

Scalia admits he most admires Justice Robert H. Jackson for the “flow” and “vividness” of his forceful opinions. When Garner points out that Jackson’s hard-hitting dissents were once criticized for being too aggressive, Scalia replies with some sarcasm: “Hmmm. Imagine that.”

The interviews are part of an ambitious project by Garner to interview judges about legal writing. He has talked to more than 100 judges, from every federal circuit and several state supreme courts.

He uses portions of the interviews in the continuing legal education seminars that he produces each year for his company, LawProse Inc. During a six-hour lecture, Garner plays about 20 clips, each ranging from about 30 seconds to three minutes in length.

The only justice who refused an interview was David H. Souter.

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Posted by BigKapono - 5 months, 2 weeks, 6 days, 1 hour, 40 minutes ago

Souter...no comment...no surprise

I wonder if SCOTUS will address its windbag nature on these videos…
Posted by mike hunt - 5 months, 2 weeks, 2 days, 12 hours, 27 minutes ago

These judges are too m;uch. They have 4 law clerks to do all their writing for them (as well as to read all the briefs for them). The day these yokels have to do things for themselves is the day they will pipe down. Of course, I suppose its better to listen to these dummies moan about legal writing than about their supposedly “measlely” $200K salaries we are paying them to sit back and stroke their goatees with. Im not making 1/3 of that and you don’t see me complaiing, and no one is doing my work. That’s why I have to read at this ungodly hour, while the justices are being pampered at the Ritz Careleton, I am at the Hampton Inn (again no complaints). Im glad to be working and getting paid, but don’t critize my writing because I don’t have 4 gnomes doing all of my work for me. Wake up and smell the coffee.
Posted by Steve Perkins - 5 months, 2 weeks, 2 days, 10 hours, 55 minutes ago

Justices “dish”, “come clean”, and “reveal all”? Good lord… talk about ugly cravats in your writing! Is ABA Jornal hiring interns from Star or US Weekly to compose its articles now?
Posted by Complaint-catcher - 5 months, 2 weeks, 2 days, 9 hours, 44 minutes ago

"Mike Hunt” says he’s not complaining? HA!
Posted by Scott - Washington, D.C. - 5 months, 2 weeks, 2 days, 9 hours ago

Why should we conclude that, simply because someone is a Supreme Court Justice, that they know how to write well? That’s rubbish. One only need to read a few of the opinions written by members of this august Court ... from any era ... to see that neither writing, nor logic, are their strong points.

These days Supreme Court Justices are picked for their political views, not their prose writing. If the quality of their written work had any bearing on their selection, or tenure, on the Court, we’d see a much different set of Justices.

Pay attention to what the Justices say about writing, but solely because they may be reading what you wrote and you want to represent your client most effectively, if given the chance.
Posted by Ellen Lorenzen - 5 months, 2 weeks, 2 days, 8 hours, 45 minutes ago

I am required by my position to write reguarly and at length. I’m not the greatest writer and I have had the experience of having an appellate court judge talk to me about the 17 page single-spaced order I had written as the trial judge. It is nice, however, when an attorney takes the time to proof read what he/she has submitted to be certain that the more glaring grammatical and spelling errors have been corrected. When the errors are obvious and many, I tend to conclude that counsel was not overly interested in the case and do not consider that the practitioner may have been short of time and not have had the resources to hire staff to proofread. I will keep those thoughts in mind inthe future.
Posted by R - 5 months, 2 weeks, 2 days, 5 hours, 32 minutes ago

I have yet to put down a recent Supreme Court opinion and say, “I wish that had been longer.” These justices should practice what they preach.
Posted by G. Lloyd Knight - 5 months, 2 weeks, 2 days, 2 hours, 10 minutes ago

Don’t split your infinitives! While it became seemingly more approved during the latter part of last century to split infinitives, many older adults abhor it. In an effort not to distract your reader, especially your judge, do not split your infinitives.

And if you don’t know what an infinitive is, there is one in the preceding sentence ... unsplit!
Posted by Brandi - 5 months, 2 weeks, 2 days, 1 hour, 2 minutes ago

Curme’s Grammar of the English Language (1931) says that not only is the split infinitive correct, but it “should be furthered rather than censured, for it makes for clearer expression”. The Columbia Guide to Standard American English (1993) notes that the split infinitive “eliminates all possibility of ambiguity”, in contrast to the “potential for confusion” in an unsplit construction. Merriam-Webster’s Collegiate Dictionary says, “there has never been a rational basis for objecting to the split infinitive.”
Posted by Kim Kremer - 5 months, 2 weeks, 1 day, 23 hours, 47 minutes ago

I just hope “Mike Hunt” proofreads his or her work-related writing. And if you’re posting to this page, you’re goofing off in the middle of the night, not working.

I may be misinformed, but I believe Justice Scalia writes his own opinions. It’s hard to get gnomes to fired up enough to write in his fire-and-brimstone vernacular.
Posted by Kim (again) - 5 months, 2 weeks, 1 day, 23 hours, 44 minutes ago

It never fails - I carp about someone else’s failure to proofread, and then make a glaring error myself. Mea culpa.
Posted by JP - 5 months, 2 weeks, 1 day, 22 hours, 22 minutes ago

In response to Mike Hunt and Kim K, I have read that one of the Justices writes all of his own opinions. I cannot remember which, but I have it narrowed down to Breyer, Stevens, or Souter. I also agree with Kim that Scalia likely writes much or all of his opinions.
Posted by SM - 5 months, 1 week, 6 days, 7 hours, 28 minutes ago

I think Scalia rights his own - see 501 U.S. 560 for his concurring opinion. I seriously doubt a clerk made the Hoosier Dome reference.......
Posted by SM - 5 months, 1 week, 6 days, 7 hours, 24 minutes ago

Haha - “writes” his own - see how it goes......
Posted by LegalCat - 5 months, 1 week, 6 days, 3 hours, 5 minutes ago

The historical prohibition against split infinitives came about because some cunning linguist noticed that in Latin—which, of course, was the exemplar of everything a language should aspire to be in the minds of an 18th-century English scholar—you CAN’T split an infinitive. Since the infinitive form is just one word, there’s no way to split it. Since you can’t do it in a scholarly, graceful, and deader-than-a-doornail language like Latin, the logic went, then you shouldn’t in English either.

In my mind, this is just plain silly. A split infinitive, in effect, creates a temporary new verb, and it’s a very powerful construct. “Appellant urges the court to carefully consider the cited precedent” really says something quite different than (as well as being hugely less awkward than) “Appellant urges the court to consider carefully the cited precedent.” I’ve just created a verb, “to carefully consider,” which precisely describes what I’m urging the court to do. It’s one of the wonderful side effects of the fact that English infinitives are formed in two words: it allows us to make a style of highly meaningful verb phrases that would be impossible in a Romance language.

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