The Garner Transcripts: That v. Which, and Other Supreme Court Writing Tips

In late 2006 and early 2007, legal writing guru Bryan Garner stealthily interviewed eight of the nine then-sitting Supreme Court justices to glean their thoughts about writing and advocacy. He had done the same in dozens of taped interviews with lower court judges, academics and writers over the years as raw material for his popular legal writing seminars.

Realizing that he had something close to a national treasure on his hands, Garner posted the Supreme Court videos online for free at his LawProse site. They caused a sensation in 2008 when word spread that they were available.

Now, in a free download that's definitely worth a look, Garner has just published full transcripts of the interviews. They appear in The Scribes Journal of Legal Writing, a publication Garner founded with Scribes, an association of legal writers.

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."

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 if you are trying to win over Justice Anthony Kennedy in a brief or argument -- who isn't these days? -- then don't use trendy words. "I do not like nouns that are turned into verbs," he told Garner. "I 'task' you or I was 'tasked' with this assignment or I was 'tasked' with this opinion. A 'task' is a noun; it’s not a verb. 'Impact.' This 'impacts' our decision; 'impact' is a noun, and it seems to me trendy."  

Justices Clarence Thomas and Samuel Alito Jr. like it when lawyers summarize their arguments at the beginning of a brief, while Scalia skips right over that part. "Why would I read the summary if I’m going to read the brief?" Scalia exclaimed to Garner.

All the justices, in one way or another, urged lawyers to write succinctly and resist the urge to write to the maximum allowed length. Justice Stephen Breyer put it this way: "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."

For Justice Ruth Bader Ginsburg, a top priority in writing is honesty. "If a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted — the rest of it," she said in her interview. "And lawyers should remember that most of us do not turn to their briefs as the first thing we read. The first thing we read is the decision we’re reviewing. If you read a decision and then find that the lawyer is characterizing it in an unfair way, we will tend to be impatient with that advocate."

The only justice at the time who declined to be interviewed by Garner, not surprisingly, was David Souter. Notoriously shy about being interviewed, Souter seemed particularly reticent about offering writing tips. "I've never been satisfied with my own prose," he told Garner in a note. "Since I don’t think my own work is worth writing home about, I’d feel presumptuous telling other people what they ought to do."

Asked if he plans to update his series by interviewing new justices Sonia Sotomayor and Elena Kagan, Garner said, "I have hopes."

UPDATE: The transcipts have now also been posted here at the publication page of the Scribes.

Comments

[Norman Otto Stockmeyer]

For information on Scribes, the American Society of Legal Writers, visit our website at www.scribes.org Membership is open to all members of the legal profession who share our commitment to excellence in legal writing.

[Andrej Starkis]

That which annoys is often that which is commonly misunderstood by those who would presume to teach others. Assuming he's been paraphrased correctly, Justice Roberts is wrong when he implies that "which" is to be used when "that" will not do. Mr. Roy then--either in a typo or an effort to placate the Chief Justice--misuses "that" (in a place where only "which" makes sense). Then Mr. Gibson compounds the confusion when he misrepresents what an "independent clause" is to explain the difference between "that" and "which."
Language does not stand still, and we're all occasionally sinners in pinning our prose to paper or exposing it electronically. But there are important ways (I'm avoiding the word "rules" here) in which to enhance communication through clarity and simplicity.
While "that" has more functions in the language (here, I'm avoiding the unfortunate phrase "parts of speech"), than does "which," they are often interchangeable when functioning as nouns that start adjective clauses ("relative pronouns" for you grammar junkies). The preference for one or the other is sometimes culturally based. Our British cousins, for example, tend to favor "which." (Hence the Chief's association of the word with stuffy prose.) The reason for preferring "that"--particularly in legal writing, where precision may be vital--is its limitation to "restrictive" adjective clauses. It can't be used (i.e., it makes no sense to the reader or listener) to start a "non-restrictive" clause (what Mr. Gibson meant by "independent clause").
For those now thoroughly confused, a restrictive modifier is one that helps identify who or what one is talking about: "the book that I gave you yesterday". A non-restrictive modifier is an extra oh-by-the-way bit of information about that person or thing: "grammar, which is often poorly taught".
Quiz tomorrow at 10:00.

[camillas jenkins]

The old journalist's rule is "watch your whiches". Strunk and White says, "It would be a convenience to all if" that and which were "used with precision... The careful writer goes which hunting." Their rule:
-- The lawn mower that is broken is in the garage. (tells which one)
-- The lawn mower, which is broken, is in the garage. (adds a fact about the only mower in question)

[Jill Smith]

The Oxford English Dictionary is a descriptive dictionary, listing usages of a word over the century. It is not a prescriptive dictionary in terms of identifying appropriate vs. nonstandard word usages. Hence, while the OED is valuable in documenting the history of a word, it is not as useful in indicating whether a word is appropriately used in a specific manner.

[Pedant]

Impact is in the Oxford dictionary as both a verb and a noun. So, maybe it is time for someone to put his quirks aside?

[Bikash Roy]

It is distressing to learn that the use of some words rather than others may tick off a judge. Judges need to rise above that. Justice Ginsburg is right about honesty that extends not only to characterizing the appealed order but to the facts of the case and to the substance of the opposing argument.
More important than mere brevity is clarity with that one weaves together fact and legal argument to clarify the issues for decision. So my personal goals in legal writing would be accuracy, clarity, brevity, in that order. Possibly less common at the level of US Supreme Court advocacy but irksome nonetheless are the various cheap debating tricks of trial and run-of-the-mill appellate "advocacy." My personal favorite is requesting the court to not consider extra-jurisdictional authority while freely citing such authority oneself. Should be downright sanctionable!

[Howard Gibson]

Justice John Roberts is mistaken if he thinks "that" and "which are grammatically interchangeable. "That" introduces a dependent clause; "which introduces an independent clause (a clause that adds information to the sentence but isn't essential to its meaning).

"That" might "have better pace to it" (whatever that means) but using "that" to introduce an independent clause is non-starter.