Supreme Court Justices Give Lessons On Legalese

“I have yet to put down a brief and say, ‘I wish that had been longer’” -Chief Justice John G. Roberts Jr.

When it comes to legal writing do’s and don’ts, Bryan A. Garner of LawProse is on the cutting edge. His CLE seminars provide a variety of valuable tips for revising appellate briefs, translating contracts and other consumer documents into simple English, drafting or rewriting rules of procedure, and simplifying jury instructions, to name a few.

But don’t just take his word for it. Now you can also consult the opinions of nine Chief Justices—the same judges who may be ruling on your brief tomorrow—who discussed best writing practices and legalese in interviews with Garner between October 2006 and March 2007.

Lawprose recently released the transcripts for these Supreme Court interviews on its website. You can read candid comments (about exactly what the bench thought of your work) from the following justices:

  1. Bryan A. Garner
  2. John G. Roberts Jr.
  3. John Paul Stevens
  4. Antonin Scalia
  5. Anthony M. Kennedy
  6. Clarence Thomas
  7. Ruth Bader Ginsburg
  8. Stephen G. Breyer
  9. Samuel A. Alito Jr.

“You’ll learn that 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,” quoted The BLT blog, which first reported the release of these transcripts.

The transcripts are rife with the writing idiosyncrasies and particular preferences of an elite few lawmakers. In an argument in front of Justice Anthony Kennedy, for example, attorneys should be weary of using nouns as verbs. So instead of saying the plaintiff was “tasked” with an assignment, try rephrasing to, “he was asked to perform a task.” The word “task,” according to Kennedy, should be solely used as a noun.

Justice Stephen G. Breyer—like Justice Roberts—appreciates brevity. “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.”

Although predominantly useful as humorous soundbites from America’s Supreme Court bench, the underlying theme of succinctness makes for both cliché and constructive advice. Justice Clarence Thomas pithily summarizes, “[T]he genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence.”

-WB

Read the full transcripts here.

Read the WSJ’s blog opinion of the transcripts here.

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