Justice Scalia and Brian Garner were in Texas last week to at the Texas Bar Association's annual meeting. The topic: legal writing. Long critical of most legal writing, Scalia spoke about some things he finds particularly irksome.
Never underestimate the power of a short sentence.
Treasure simplicity and clarity, Scalia said.
"You don’t get any credit for eloquence," Scalia said. "Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex."
Avoid using words you don’t know how to pronounce.
"You’re inclined to think this person is not the sharpest pencil in the box," Scalia said. "I’ve listened to lawyers who have sent five kids to college on nuclear power and still can’t say the name right. It’s nuclear. Nuclear."
Use italics sparingly.
"If you’re constantly italicizing words, it sort of reads like a high school girl’s diary," Scalia said.
Tex Parte Blog covered the talk as well, getting some more great quotes:
He regards as “hackneyed” the expressions “fatally flawed” and “Roe v. Wade and its progeny.”
Characterize cited precedents accurately: “When a judge sees that you are playing fast and loose with a citation, he is not going to believe the rest of your brief.”
I'm pretty sure I'm not eloquent and I don't think that I ever will be, so that's good. I use contractions (he isn't a fan). Blockquotes too (again, not a fan). My sentences are short and simple, which would be good, if they didn't read like Hemingway on meth.
In short, if Scalia ever managed to get his hands on anything I wrote, he would think that I am a high school girl, who was left back a couple of grades, writing in a diary.
Here's an interesting question: Does no-fault lend itself to good writing? With very few exceptions, unfortunately the answer is no2. No-fault motions don't vary much. They can't. What I mean is that the underlying arguments don't vary. Writing about the same thing, over and over and over, you lose a little something. That little something tends to be research and writing. Does it matter? Probably not.3 Should it matter to you? Probably.
Most attorneys don't stay in this field long. They come straight out of law school, work a couple of years doing this, and leave4. And others stay. Whether you stay or go, you probably want to get ahead. One way to do that is to write well. It isn't easy, and it's a talent few possess. Not easy + rare = marketable. I don't hire people, but if I did, it would be something I looked for. It'd be pretty important to me. Whether it's important to your boss is irrelevant. That's a terrible excuse. Someone told me once, "complacency will kill you." It will. It will glue your feet to the floor.
For all I know, tomorrow I'll be sitting in court thinking about how trying to write well is a waste of time. Wasted effort having no effect affect on the outcome. So take all this with a grain of salt. Also remember, I am no expert. Not even close. I work on my writing when I have time. Sometimes I don't when I should. Sometimes I focus on my writing, ignoring the content. It doesn't come easy to me. Never did. Even when I try, I manage to screw it up. Hell, I don't bother to proof-read my posts.
Getting back to Scalia and Garner...
They have a book, you should read it. I've recommended it three times now, which must be some sort of record. Garner teaches CLEs on writing. You should go to one. I missed the one this year because it's expensive. Really expensive. Have someone else pay for it.
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2. That's an emphatic "no"
3. With a qualification. Research matters. You shouldn't be citing bad law or getting cute with your cites.
4. They leave for varied reasons. Sometimes it's the money. Other times it's the prestige (or lack thereof). Some people really hate going to Court. It really doesn't matter.
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