July 2011 • Volume 99 • Number 7 • Page 368
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Finding Illinois Law
Briefer Briefs: Writing and Speaking Tips from the Supreme Court
The transcripts of Bryan Garner's interviews with Supreme Court justices about effective advocacy are themselves good models for engaging storytelling.
Occasionally, I branch out a little in this space and get away from simple bibliographic information about where legal info can be found (ideally online and free). This is one of those times.
Recently, the transcripts of a series of interviews conducted by Bryan Garner with eight Supreme Court justices on legal writing and oral advocacy were republished in volume 13 of The Scribes Journal of Legal Writing.1 The interviews were conducted in 2006 and 2007, and all of the then-current justices except Justice Souter took part.
Bryan Garner, of course, is the preeminent authority on legal writing and editor-in-chief of Black's Law Dictionary, a title that needs no introduction. He also recently co-authored a book on legal writing with Justice Scalia, titled Making Your Case: The Art of Persuading Judges. In this series of interviews, he discussed with the justices their predilections for the briefs they get from counsel (Justice Scalia, for instance, "love[s] But at the beginning of a sentence…").
Ironically, a lot of what is written about legal writing is tedious. These transcripts2 are quite the opposite, especially for us inveterate Court watchers. Here are some of the pearls the justices leave to us.
Shuffling the notecard deck
Chief Justice Roberts was a leading oral advocate before the Supreme Court before he became a justice. It is thus unsurprising that his argument preparation was thorough indeed. He would prepare notecards for his major points and practice the argument after shuffling the deck. Since the questioning of the judges can throw off the order of presentation, practicing in this way allows counsel to work on transitions, not just from point A to point B, but also from point B to point E, point D to point A, and so on.
Justice Scalia is often considered the writer on the Court with the most engaging prose. Among Justice Scalia's concerns with lawyers's briefs is that they tend to use the maximum allotted page or word count. "Use as much as is necessary to make your point."
For his opinions, Justice Scalia indicates that in his series of re-edits, of which he said there would be at least five, most of the editing is deletion, not addition. He also spends some time explaining the difference between a "strict constructionist" and a "textualist," and indicates that not only is he the latter, but that the formers give the latters a bad name. (I refer you to the interviews for the distinction.)
Justice Thomas rarely speaks at oral argument and is on record saying oral argument is unnecessary. In the Garner interview, he explains that he believes the number of questions asked at oral argument is excessive and unfair to counsel, even implying that it is disrespectful. Unsurprisingly, Justice Thomas indicates that his mind is "[a]lmost never" changed by oral argument. He said the summary of the argument was the most important part of the brief, which he likened to previews for next week's episode of a favorite TV show (he mentioned 24).
One of the biggest surprises to me was the revelation that Justice Breyer has never used a footnote in his Supreme Court opinions.3 I actually read every opinion of the Court when they come out, and I have never noticed this particular idiosyncrasy. (Conversely, and somewhat surprisingly, Justice Scalia likes footnotes, which puts him at odds with his co-author Garner).
Not everything I've described, of course, will help you become a better brief writer or oral advocate, though I've given only a small sample (the PDF of the transcripts runs 192 pages). And to be sure, writing a brief for the Supreme Court of the United States is different than writing a memorandum in support of a motion for summary judgment in a state trial court.
But4 in many ways it is the same. Chief Justice Roberts's admonition to tell a story works regardless of which court you are addressing. If you're interested in improving your own brief writing or oral advocacy, take a look. It's certainly the first time I could say I was engaged by a discussion on these topics.
Tom Gaylord is a law librarian at Chicago-Kent College of Law.
1. The volume is available online at http://www.scribes.org/sites/default/files/Scribes-Journal_Volume-13_Garner-transcripts.pdf.
2. Videos of the interviews are also available, at http://lawprose.org/interviews/supreme-court.php?v=P2yl9x-KPFk.
3. The exception being unless necessary, for instance, to indicate that another justice was not joining that part of the opinion.
4. Did you like that, Justice Scalia?