Chief Justice John Roberts 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. Language is 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. Another point is people develop a lot as a writer the more they read. And so whenever John Roberts has a lot of time to read, he improved a good bit as a writer. Roberts reads a lot, as other people do, of course, in high school and college. And the interesting thing is, people lose a lot of writing ability when they get to law school because you tend to read a lot of stuff that isn’t that well written. And you tend to stop reading other stuff that is well written because you don’t have time. Focused on some badly written cases from whenever or some badly written laws, first of all, and you’re not reading anything good. So you tend to start writing not as well as you might have earlier. Maybe law students ought to make sure they have time to read good things apart from the law throughout law school. Roberts talks a lot about the importance of being clear in your writing and to know what you are talking about. Surround yourself with all the raw materials — the record in the case, the important precedents, the statute, and the regulations — and put it all there. Tend to try to write up a little outline of thoughts. At one point, ideally, it kind of crystallizes to — this is the right organization. That’s the main point I guess. We should spend a lot of time before on organization before writing. This is what’s going to work. Start with this point, this point, this point, this point, and it folds together this way. Once it is all set, spend a lot of time writing the facts, certainly before any writing on the law. In other words, organize to find all the right facts before starting to write.
Justice John Paul Stevens Grammar matters. 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 should be if he doesn’t speak carefully. Grammar is really quite important. And we don’t encounter grammatical errors too often. Steven also still writes briefs on his very own opinions, that’s kind of a long story, but Stevens thinks a judge learns more about a case if he has to put his thoughts down on paper. It helps you think through a case, and when you write it out yourself, you often learn things about the case that you hadn’t realized. It’s part of the learning process and decisional process that I think is really quite important. Case briefs have improved a bit, but it’s certainly better than it was when Paul Stevens was a law clerk. Well, yes, it has improved because particularly the states are much better represented now than they were when he first came on the Court. During Stevens early years there were a number of states that let people argue cases maybe for political reasons, rather than because they were the best-qualified lawyers. So on the whole the average is better now. There’s no perfect system, one-way or the other. But citations have gotten longer and longer, haven’t they? I mean it used to be that a citation, in the 19th century it would be 12 characters. Now they’re 250 characters. To improve briefs, which Steven thinks, for the most part, they’re doing pretty well right now. The most important thing is to be accurate and intellectually honest in your arguments and state them clearly, but most of the briefs really are of high quality — the ones in the cases that we hear on the merits. Also to reply to a brief, address arguments that you may not have covered in your original brief and respond to arguments that you haven’t met the first time around.

Justice Antonin Scalia Well, much, indeed most, of the communication that lawyers engage in is written. To write well is to communicate well. To write poorly is to communicate poorly. It also matters because to the extent that lawyers don’t write well, to the extent they abuse words, to the extent they use them incorrectly, they are making dull the tools of their trade, which is a terrible thing. There are some things that can’t be said as cogently, as concisely, and as precisely as used to be possible. One of Scalia’s pet peeves is something that is happening recently, a word that is becoming less useful than it used to be, and that is the word cite, to cite. In more and more briefs, people use, “He cited to Marbury v. Madison.” You don’t “cite to” a case; you “cite” a case. And when you put in the unnecessary to, you make it impossible to use the indirect-object construction, which was possible when you used the direct object; that is to say, you used to be able to say, “He cited Marbury to the court.” You can’t possibly say, “He cited to Marbury to the court.” But it’s basically illiterate to put in the to, and it’s a shame. It’s dulling one of the tools of our language. Scalia does not like extra words in sentences that do not do something. When he edits drafts of his law clerks, most of Scalia’s work consists not of additions, but of deletions. And when he re-edits his own work, He usually cuts out words that on reflection seem to me unnecessary. When you write well, you capture the attention of your audience much better than when you write poorly. To be a good legal writer you must be literate, that’s number one. Besides being grammatical, avoiding legalese, avoid trendiness. That’s probably the other extreme of legalese.

Justice Anthony Kennedy There’s always a purpose in writing. Most young lawyers will have their first experience in sending a memo to another lawyer in the firm or to draft a memo to the client, and you have to remember who your audience is. And the audience, if it’s the lawyer in your firm, doesn’t have a lot of time and is not interested in your displaying everything that you know. That lawyer has to have a quick answer and a clear answer. He wants to be convinced in a short period of time that you know what you’re talking about because you have some authority — or that you don’t, and then it’s an unclear question depending on how you come out. So you look at the audience. Now, in a legal opinion we have different audiences. Kennedy writes a case much differently if it’s a railroad- reorganization case than a First Amendment case that the public is generally interested in. And you have various purposes in writing opinions, again varying slightly because of the audience. You must convince the parties that you’ve understood their arguments. You must convince the attorneys that you’ve understood the law. And if it’s a case of public importance, you have a different and much more difficult objective. You must command allegiance to your opinion. You must command allegiance to the judgment of the Court. This is the common-law tradition. Kennedy thinks somebody reading the summary of the argument should understand what the case is about and the essence of the argument that is being made and should be persuaded to agree with that argument by what’s in the summary. And then in the rest of the brief, you develop the points. Always be clear, just, and to the point. Kennedy has some good advice points. His main advice is that we just have to go back to the rules of writing that you would use in another context, and try to apply them in legal writing as far as you can without unnecessarily, unjustifiably sacrificing the precision that you need in doing technical writing.

WORKS CITED

(1) Lawprose.org
(2) Supremecourt.gov
(3) Law.cornell.edu
(4) Nymag.com