Popular legal writing expert Bryan Garner gathered information from Supreme Court justices and put together a series of interviews as a guide. For example, Chief Justice John Roberts does not like to see "which" used where "that" is more appropriate. Justice Antonin Scalia dislikes the overuse of legal terms according a report in the BLT: Blog of Legal Times, where Scalia explained his aversion, "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." Using Justice Scalia's cocktail party test, we all know that if you referenced "unclean hands" you might get either a laugh or thrown out of the party.
Justice Anthony Kennedy does not want to see nouns turned into verbs, the BLT report notes, "I 'task' you or I was 'tasked' with this assignment or I was 'tasked' with this opinion. A 'task' is a noun; it's not a verb. " Another example from Kennedy that the BLT cites is the use of 'Impact.' "This 'impacts' our decision; 'impact' is a noun, and it seems to me trendy."
You can earn style points with Justices Clarence Thomas and Samuel Alito by including a summary of the arguments at the beginning of the brief, while Justice Scalia will skip past that. Honesty in writing is demanded by Justice Ruth Bader Ginsburg. Mis-citing authority or improperly slanting a point will cause her to distrust the entire brief.
One tip they all seem to agree on, according to Garner, is a love of succinct writing. A brief that gets right to the point is favored, no need to write to the maximum allowable length.
Mr. Garner released the entire transcript of his interview with the justices in the Scribes Journal of Legal Writing. The actual interviews are available on Garner's Law Prose website if you prefer to watch.
BLT: The Blog of Legal Times
Scribes Journal of Legal Writing
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