Here are three sentences from Paul Clement’s Supreme Court brief against the Affordable Care Act’s individual mandate. When you see bolded language, I’ve replaced Clement’s evocative verb choice with typical lawyer talk. Take a stab at guessing what he actually wrote each time:
In all events, the federal government gains nothing by asking the Court to discard both the mandate and the penalty and replace them with a tax, as the hypothetical tax statute the federal government proposes would be no more constitutional than the statute Congress actually enacted.
What is more, the Court did so for the very same reason that is fatal to the federal government’s arguments here: because the means Congress adopted were neither valid exercises of the commerce power itself nor means “proper for carrying into Execution” that power.
The power to compel individuals to enter commerce, by contrast, is reminiscent of the police power, which the framers reserved to the states.
Now here is the language that Paul Clement, no doubt one of the best brief-writers in the land, used instead:
[T]he federal government gains nothing by asking the Court to jettison both the mandate and the penalty . . . .
[T]he Court did so for the very same reason that dooms the federal government’s arguments here . . . .
The power to compel individuals to enter commerce [. . .] smacks of the police power . . . .
Each of Clement’s vivid choices paints a picture, stokes an emotion, or both.
Many lawyers lament that legal writing squelches their creativity. It doesn’t need to. Take the sentence I just wrote. In my first draft, I wrote, “Many lawyers tell me that legal writing leaves no room for them to be creative.” Luckily, I objected to my own wilted prose, replacing “tell me that” with “lament that” and replacing “leaves no room for them to be creative” with “squelches their creativity.” That sort of word play is “creative” legal writing at work.
Even as a lawyer beholden to forms and terms of art, you have many options on the wording front. Not “take into consideration” but “heed.” Not “take out of context” but “pluck.” Not “cause harm to” but “slash.”
Vivid verbs can also shape how judges see you and your adversary.
Can you think of catchy alternatives for these bolded yawners: “mislead Wall Street,” “manufactured a term,” “dividing a class of married persons,” “the State Department’s delaying,” and “transforming exculpatory evidence into inculpatory evidence”? Now see below.
Joe Jamail, In re Sunbeam Securities Litigation
Sunbeam intentionally played fast and loose with its accounting numbers to hoodwink Wall Street.
David Boies, In re Vitamins Antitrust Litigation
Defendant, not plaintiffs, coined the term “persons with decision making authority” to define the files to be searched.
Paul Smith, Gill v. Office of Personnel Management
This sundering of the class of married people violates the Equal Protection guarantee of the Fifth Amendment.
Alan Dershowitz, In re People’s Muojahedin Organization of Iran
Indeed, amici submit that the State Department’s foot-dragging and failure to timely comply with this Court’s mandate is itself powerful evidence that the continued designation of PMOI as a foreign terrorist organization cannot be justified.
Larry Robbins, United States v. Bayly
It is not hard, however, to understand the government’s abrupt change in position. For one thing, the new theory, if accepted by this Court, would alchemize exculpatory evidence (that a third-party purchase, such as by LJM2, was assured) into inculpatory evidence (that an Enron buyback was guaranteed).
And here are a few more:
Ruth Bader Ginsburg, Craig v. Boren
Oklahoma’s sex/age classification to determine qualification for association with 3.2 beer pigeonholes impermissibly on the basis of gender in violation of the fourteenth amendment’s equal protection principle . . . .
Walter Dellinger, Bank of America v. Cleveland
Bank of America’s crucial allegation — that Cleveland is attempting to curb Bank of America’s lending activities by bludgeoning its parent company — provides the requisite case or controversy . . . .
Morgan Chu, Tivo v. Echostar
So far, of course, EchoStar has managed to thwart that goal.
Larry Lessig and Kathleen Sullivan, Eldred v. Ashcroft
This mocks intermediate review.
Bernie Nussbaum, Crest v. Wal-Mart Stores
Dr. Howard suggests, without any support, that any below-cost pricing of “sensitive items” dupes customers and creates “halos.”
Joshua Rosenkranz, MGA Entertainment, Inc. v. Mattel, Inc.
After brash Bratz dethroned princess Barbie, Mattel responded with a strategy to “litigate MGA to death.”
Ken Starr and Eric Holder, McDonald v. United States
The Ninth Circuit’s blinking at these racial gerrymandering tactics deepens a divide among the lower courts regarding the balance between due process rights and prosecutorial discretion.
What are some other evocative verbs or turns of phrase that you find effective?
(Incidentally, yesterday’s post prompted some grammar questions. For those of you who are interested, here are my Five Grammar Myths.)