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."