Justice, Heal Thyself

Brian Garner is not just the editor of Black’s Law Dictionary, but the person’s whose name is invariably preceded by “legal writing guru.”  That gave him the opportunity to interview 8 of the 9 sitting Supreme Court justices, and ask them their thoughts on legal writing.  He’s posted the interviews here and the transcripts here.

Tony Mauro called Garner’s interviews “something close to a national treasure,” and no doubt they are with such gems as:

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.” Garner and Scalia, by the way, are collaborating on a second book, this one about legal interpretation, due out later this year.

And there’s plenty more good stuff in there, a most-read for all of us.  That said, however, Gerard Magliocca at  Concurring Opinions makes an observation that puts it all in perspective.

The headline is that the members of the Court think that briefs are too long.  “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.

Being a reader of more Supreme Court decisions than I care to admit, Gerard’s snark hit home.  Some are nearly incomprehensible, straining rhetoric beyond the breaking point and going on forever before getting to anything that matters.  If at all.  The more words used to express an idea, a test, a burden, a holding, the more confused the opinion gets. 

In the blawgosphere, we discuss, even argue, about what a decision means all the time.  And then we wait, sometimes for years, to find out if we’re right.  Or we wait for another Supreme Court decision, maybe a decade later, explaining what they meant in a prior decision because nobody had a clue what do with the earlier one.

Maybe the reasons briefs grow long and windy is that no one is clear what the Supreme want from them, what they already know and don’t. Maybe it has to do with getting slaughtered for leaving out something that everyone thinks is obvious, but that some justice will conclude is waived if not expressly spelled out, at great length.  And maybe, just maybe, words don’t always convey the same message to the Nine, and need to be written differently, explained differently, to meet their points of view.

Regardless of how well or poorly advocates present their arguments, the best way to teach lawyers how to write, if they’re doing such a lousy job of it, is by example

Don’t tell me the moon is shining; show me the glint of light on broken glass.

I’m watching and waiting.