Thursday, April 10, 2008

The Justices on Legal Writing

A friend recently forwarded this link to me.  The page contains videos of interviews conducted by legal writing expert Bryan Garner with eight of the nine Justices of the Supreme Court.  The interviews principally focus on the do's and don'ts of legal writing and oral argument, though Garner also covers a few miscellaneous points here and there as well (for instance, Garner asks Justice Scalia about the distinction between a strict constructionist and an originalist).   As of this post, I've watched the interviews with Chief Justice Roberts, Justice Alito, Justice Stevens, and Justice Thomas.  Some randomly listed impressions:

-  All of the justices are scary smart, but Chief Justice Roberts is scary smart and scary articulate.

-  At one point in his interview (in Part 4 of the video), Roberts takes what is for him an uncharacteristically undiplomatic shot at modern legal academics, saying that most of what they produce is worthless to those who must actually deal with law (ie. lawyers and judges) and stating his wish that legal academia had more "engineers" and fewer "theoretical mathematicians."

-  For those (like me) who can proofread a document obsessively before sending it out and still miss typos Justice Stevens offers a bit of solace: he says that he finds typographical errors in most of the briefs that he reads.

-  Of the interviews I've watched thus far, Justice Thomas's provides the most number of valuable insights about legal writing.

-  More than one justice has listed Justice Robert Jackson as a legal writing role model.  Hard to argue with that (for instance here's his dissent in Korematsu).  Justice Holmes also gets some love for his diction (though not his clarity).  Of course, Chief Justice Marshall is mentioned repeatedly as a great writer as well.  On the other end of the spectrum, any opinion from the 1870's-era Court (Pennoyer v. Neff, anyone?) presumptively sucks.  It was nice to learn that even Chief Justice Roberts, when looking through old cases, sometimes has to put the Supreme Court Reporter down and look for discussions that are more easily comprehensible.

-  It was also nice to hear from Justice Scalia again (he's said it elsewhere) that writing is very difficult and exhausting for him, though (of course) ultimately rewarding.

-  Best oral advocacy tip:  Chief Justice Roberts discussing how he prepared for oral argument by, among other things, practicing giving the major points of his argument in random order so that he would be prepared to transition from any one major point in his argument to any other point (thus allowing him to answer a question on one point and then smoothly turn to a point he wanted to talk about).

More later.


Corrections:  Fixed a couple of grammatical errors.  (No, the irony does not escape me.)


Alex said...

Excellent post and link, Brian.

Brian said...

Thanks. Perhaps this weekend I'll have time to view the rest of the interviews and post some thoughts on them.