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