Friday, May 20, 2011
Bryan Garner interviewed several SCOTUS Justices about what they think makes an appellate brief good and published the transcripts in Scribes. Below are some choice excerpts courtesy of An Associate's Mind. Click here to get the whole enchilada via the aforementioned Scribes and click here to get AAM's always worthwhile commentary.
Chief Justice John G. Roberts, Jr.
BAG [Garner]: On some of the cases on which you grant cert, are you still, when you read the briefs, having to hack through with a machete?
JGR: Well, sure. The quality of briefs varies greatly. We get some excellent briefs; we get a lot of very, very good briefs. And there are some where the first thing you can tell in many of them is that the lawyer really hasn’t spent a lot of time on it, to be honest with you. You can tell that if they’d gone through a couple more drafts, it would be more effective. It would read better. And for whatever reason, they haven’t devoted that energy to it. Well, that tells you a lot right there about that lawyer’s devotion to his client’s cause, and that’s very frustrating because we’re obviously dealing with very important issues. We depend heavily on the lawyers.
Our chances of getting a case right improve to the extent the lawyers do a better job. And when you see something like bad writing, the first thing you think is, “Well, if he didn’t have enough time to spend writing it well, how much time did he spend researching it? How much time did he spend thinking out the ramifications of his position?” You don’t have a lot of confidence in the substance if the writing is bad.
Justice John Paul Stevens
BAG: How much does grammar matter to you?
JPS: Well, it does matter. It really does. And it’s perhaps unfair, but if someone uses improper grammar, you begin to think, well, maybe the person isn’t as careful about his work, or his or her work, as he or she should be if he doesn’t speak carefully. Grammar is really quite important.
Justice Antonin Scalia
BAG: What are the characteristics of a good legal style?
AS: Well, number one, be literate. That’s pretty basic — such as not saying cite to and such as using an apostrophe before a participle that’s used as a noun. There is a difference between “I saw him coming” and “I saw his coming.” And increasingly I read briefs where they never put an apostrophe before the noun form of the verb. And that’s terrible. Again, it makes it impossible to convey that difference between “I saw him coming” and “I saw his coming.” Beyond pure literacy, avoid legalese. There are all sorts of . . . the instant case. I said in one of my speeches or I wrote somewhere: a good test is, 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.