Author Archive | Ross Guberman, guest-blogging

That Reminds Me: Examples and Analogies

When Utah sued the federal government over the 2000 census, a census-taking technique called “hot-deck imputation” was on the hot seat. Utah was none too happy to have lost a representative based on its population estimate, so it argued that “imputation”—inferring who lives in a residence by looking at like neighbors—was essentially “sampling,” which is prohibited by statute.

At the oral argument, the Court seemed receptive to the State’s argument. But then Solicitor General Ted Olson stood up and tossed out the following “metaphor,” as he called it:

[Say] the Court asked the library of this Court to ascertain the number of books [. . .], but sampling was not permitted to do that, so that the librarian could not go to every third shelf, multiply, count the books, multiply by three and get the census.

But if the librarian went to those shelves and counted every particular volume and found that there was a space here on that shelf, a space this big on the next shelf, and a space this big on another shelf, for example, the imputation would be saying, “Well, all the books or the books right next to this are this size, and therefore that space a book is missing, so we know we have a book, and we will impute one book to that space or two books to [that] space.”

So that the sampling technique is completely discrete from the imputation technique.

The Justices’ skeptical tone softened. “I’d like to understand this better,” said Justice Breyer. “In the library, you look and see that everything around the book is a history book and so then you impute the characteristic of being a history book to the one that’s missing. That’s your analogy of what goes on here, is that right?”

As you can [...]

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Power Verbs

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 [...]

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Three Tips for Trial Filings

Trial filings are the Ugly Ducklings of written advocacy. Rarely do judges say, “Ross, I just read the most incredible motion in limine” or “Wow, you’ve got to see this memorandum in support of partial summary judgment that I just devoured.”

Let’s face it, although most litigators hang around the trial courts, most of the name-brand brief writers are known for their appellate work.

That said, if you dig deep enough, you can find terrific writing in even the most mundane cases and filings.

I share three techniques below.

Add headings to your fact section and put them in the present tense.

Between the never-ending record cites and the long blobs of uninterrupted text, many fact sections are a turn off. One underused trick is to pepper your fact section with the same sort of meaningful headings that you would use in your argument section. By doing so, you can both break up the monotony and, as long as you keep the tone neutral, add some persuasive effect.

Also consider putting your headings in the present tense to help them come alive.

Here’s an excellent set of headings in an opening brief for Lucent before the District Court of Delaware. The bankruptcy-related brief was signed by former Solicitor General Seth Waxman, lawyers at Cravath, and others:

A.  The Parties Begin A Strategic Relationship Intended For Mutual Benefit
B.  The Parties Execute The “Subcontract” And Thereafter Engage In “Pass-Through” Transactions To Finance The Build-Out Of Winstar’s Network
C.  Winstar Assists Lucent In Meeting Revenue Targets; Lucent Provides Winstar Reciprocal Benefits
D.  At The Height Of The Telecom Boom, Winstar Obtains More Favorable Financing Terms
E.  The Lucent And Winstar Relationship Further Deteriorates

Use bullet points to contrast your opponent’s claims with your own.

Particularly in opposition or reply briefs, this technique [...]

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The Supreme Writer on the Court: The Case for Kagan

Justices Scalia and Kagan have joined forces on deer-hunting trips. Do they share the same gift for writing as well?

In only a few years’ time, Kagan’s engaging yet biting opinions and dissents have astonished a once-skeptical Left — and have catapulted her to the top of the liberal bloc, if not the entire Court.

I offer three reasons below.

Razor-sharp clarity.

Kagan has emerged as one of the bench’s clearest writers of opening paragraphs. Take her first paragraph in Florida v. Harris, writing for a unanimous Court:

“In this case, we consider how a court should determine if the ‘alert’ of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s relia­bility. See 71 So. 3d 756, 775 (2011). We think that de­mand inconsistent with the ‘flexible, common-sense standard’ of probable cause. Illinois v. Gates, 462 U. S. 213, 239 (1983)” (Florida v. Harris).

This quick three-sentence opener gives lawyers, lower-court judges, and the public just what they need. And yet she also spins the state supreme court holding so it sounds unreasonable on its face, giving the opening paragraph the force of syllogism.

In that regard, she crafts openings to opinions the way the very best appellate lawyers craft their statements of the issues.

Even more incisive are the bird’s-eye-view openings to her dissents. Consider the start of her recent dissent in American Express v. Italian Colors, and watch how it chugs along toward her Scalia-esque — and already widely quoted — “Too darn bad”:

“Here is the nutshell version of this case, unfortunately obscured in

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The Supreme Writer on the Court: The Case for Roberts

Here are two passages from a recent Supreme Court case called Already LLC v. Nike.

Guess which Justice wrote each.

Passage One

“This brief, separate concurrence is written to underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor with trademark infringement sud­denly to abandon the suit without incurring the risk of an ensuing adverse adjudication.”

Passage Two

“If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.”

The author of the first passage is Justice Kennedy. Although he has said that he aspires to write like Hemingway, his sentence is not exactly The Old Man and the Sea.

The second passage is from the Chief Justice, and it’s a prime example of why Jeffrey Toobin’s new book The Oath describes him as a “brilliant writer — clear, epigrammatic, eloquent without being verbose.”

The Chief Justice was no doubt one of the best advocates of his generation, but is he also the best writer on today’s Court?

The winner of such a contest would hinge in part on how the umpire calls balls and strikes. Applying my own rule book, I will judge these Justices based on three criteria: a knack for the aphorism, a command of the “impure style,” and a laser-like focus on issues. As I explain below, Roberts hits a home run on all three.

First criterion: a knack for the aphorism.

Let me share another pair of passages. The first is from Justice Kennedy: “Preferment by race, when resorted to by [...]

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