Some years ago, Bryan Garner, a leading American specialist on legal writing, whose works include the now-standard Dictionary of Modern Legal Usage, began interviewing judges about their approach to legal writing, about the authors who have influenced them and their assessment of legal briefs submitted by counsel. He succeeded in getting interviews with eight of the nine Supreme Court Justices who were serving in 2006-2007. Justice Souter, with typical modesty, declined, saying that he did not think his views on these matters were worth recording. After much cajoling, the remaining justices agreed, and the result is a fascinating series of interviews, the videos which have now been made freely available on the Internet. They are published on the website of LawProse, a company headed by Bryan Garner, which provides CLE training in legal writing in the United States and elsewhere. Most of them are quite lengthy and detailed but, as because of that, they provide fascinating insights into how the Justices go about drafting their opinions and their views about the written briefs submitted to them. Transcripts of the interviews have recently published in Scribes, a journal of legal writing, also freely available on the Internet (link to PDF transcript here).
A short account of the entire enterprise appeared in the New York Times on May 20, 2011 in an article by Adam Liptak, “Keep the Briefs Brief: Literary Justices Advise”. Liptak is the NYT Supreme Court correspondent and, like his predecessor, Linda Greenhouse (now teaching at Yale Law School), a truly outstanding legal journalist who is always worth reading.
As to the Justices’ favourite authors, Justice Ginsburg likes Nabokov (well, he did write more than Lolita, you know), whereas Justice Kennedy aspires to write like Hemingway. Chief Justice Roberts has a preoccupation with the distinction between “that” and “which”. He distinctly prefers the former but believes that both can often be avoided with profit. Like most of the others, he places great emphasis on the value of clarity, arguing that since the Court is charged with interpreting the Constitution and deciding other important legal questions, its decisions should be comprehensible and accessible, not only to present-day readers but to future generations as well. I am afraid that he has little time for academic writing, saying that it has “no use or interest” for practising lawyers and judges. That, unfortunately, is true of much legal scholarship emerging from American universities today and is in danger of happening on this side of the Atlantic as well. On a more positive note, this collection of recorded interviews could provide the basis for a great semester-long course in any law school in the common-law world.
As to the master practitioners of the art of legal writing, the person most often mentioned by the Supreme Court Justices and others is Robert H. Jackson who served on the court from 1941 to 1954. Unfortunately, he died in his early sixties. However, Justice Scalia was recently given an award as the best legal writer alive today. I read somewhere once that Justice Jackson used to say that when he appeared before the Supreme Court as counsel, he usually had three arguments: the one he had prepared, the one he ended up making and the one he thought of on the way home, with the third of these invariably being the best of all. Most of us can sympathise.
The editorial content of published law reports, and headnotes in particular, also call for good legal writing. As in the case of the judgments themselves, brevity and clarity are also preferable to prolixity. Robert Megarry in his first Miscellany-at-Law (London, 1955) gives some great examples of brief headnotes such as “Possession in Scotland evidence of stealing in England” and “Twenty-five witnesses and a horse on one side against ten witnesses on the other, – Held not such a preponderance of ‘inconvenience’ as to induce the court to bring back the venue from the place where the cause of action (if any) arose.” Megarry himself was a great legal craftsman and I’ll make him the subject of another posting shortly.