June 30, 2011
SCOTUS Justices on the Language of Law: Advocacy and Legal Writing (and by Implication Legal Research, Too)
On Legal Writing Prof Blog, Judith D. Fischer (Louisville) writes:
The latest issue of the Scribes Journal of Legal Writing (Volume 13) is a gold mine of Supreme Court justices’ observations about brief writing and oral argument. Several years ago, legal writing expert Bryan Garner conducted video interviews with eight justices. Garner graciously posted these videos on line, and many law professors have taken advantage of their availability. ... Now the interviews are in print. Nearly two hundred pages of nuggets about writing grace the current issue of Scribes.
Yes, 200 pages (and I've just started reading) but, so far, the Scribes issue is well worth the time, even if you have watched Garner's videos of the interviews. Since CJ Roberts once lectured law school students about the "copy and paste" mentality that evidenced no real understanding of the legal issues presented in SCOTUS briefs (!), here's a snip from the Roberts (JGR) - Garnder (BAG) interview as published in Scribes:
JGR: Language is the central tool of our trade. You know, when we’re looking at a statute, trying to figure out what it means, we’re relying on the language. When we’re construing the Constitution, we’re looking at words. Those are the building blocks of the law. And so if we’re not fastidious, as you put it, with language, it dilutes the effectiveness and clarity of the law. And so I think it’s vitally important — whether it’s a lawyer arguing a case and trying to explain his position, whether it’s a legislator writing a law, whether it’s a judge trying to construe it. At every stage, the more careful they are with their language, I think, the better job they’re going to do in capturing in those words exactly what they want the law to do; in persuading a judge how to interpret it; and as a judge, in giving a good, clear explanation of what the law is.
BAG: Do you think the profession could do better on that score?
JGR: Yes. I think we all can do better. We read hundreds, thousands, thousands of briefs in the course of a year at the Supreme Court, and some are more effective than others. And it’s just a different experience when you pick up a wellwritten brief: you kind of get a little bit swept along with the argument, and you can deal with it more clearly, rather than trying to hack through . . . it’s almost like hacking through a jungle with a machete to try to get to the point. You expend all your energy trying to figure out what the argument is, as opposed to putting your arms around it and seeing if it works.
Since the result of legal research is supposed to produce effective legal writing and advocacy -- whether in briefs or oral arguments in litigation or legal memoranda or opinion letters advising clients -- I believe many moot court clinicial law profs and LRW and ALR profs can read between the lines to spot appearances of the disconnect between the legal research and effective legal writing and advocacy skills training, at least in the opinions of SCOTUS justices. Recommend reading ahead of the 2011-2012 academic year. [JH]