Archive | Writing

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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Now There Are Some Sentences for You

State v. Willan (Ohio June 12, 2013) involves statutory construction; the court rules, 4-3, that the statute under which defendant was convicted unambiguously applies to defendant, but the dissent argues that the statute is ambiguous and that defendant should prevail because of the Rule of Lenity. The statute reads as follows:

Except when an offender commits a violation of section 2903.01 or 2907.02 of the Revised Code and the penalty imposed for the violation is life imprisonment or commits a violation of section 2903.02 of the Revised Code, if the offender commits a violation of section 2925.03 or 2925.11 of the Revised Code and that section classifies the offender as a major drug offender and requires the imposition of a ten-year prison term on the offender, if the offender commits a felony violation of section 2925.02, 2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, or 4729.61, division (C) or (D) of section 3719.172, division (C) of section 4729.51, or division (J) of section 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender, if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of section 2907.02 of the Revised Code and, had the offender completed the violation of section 2907.02 of the Revised Code that was attempted,

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Subtle Wit and Subtle Eloquence in Briefs

In my First Amendment Amicus Brief Clinic this Fall, students will naturally be told to write clearly, concretely, and precisely, with sound reasoning and in a calm, credible tone. But while that’s important, it does help to have some flair, some wit, and even some eloquence, if it doesn’t undermine the other requirements.

Naturally, this sort of thing doesn’t come easily even to experienced writers, much less to students Indeed, attempts at wit and eloquence often backfire, for instance if they sacrifice a precise description for a more colorful but imprecise one, or if they make the brief seem strident or exaggerated. They also risk distracting the reader instead of winning him over. At the same time, a colorful and memorable way of putting something, especially when it captures the moral or practical truth at the heart of the argument, can help move the reader to see things your way.

I’d therefore like to show students some particularly effective passages, from briefs filed in court, that have a suitable (which I think in this case must mean subtle) wit or eloquence. Can any of you recommend some examples? Please post the relevant passages in the comments, together with a citation to the brief itself. I am not looking for such passages from judicial opinions; judges can get away with things that lawyers cannot. I’m also not looking for entire briefs — I’ll have my students read several briefs that are generally quite effective, but for this part of their education I’d like to give them just short excerpts. Many thanks to those of you who can help with this. [...]

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The Message from Justice Scalia: When You’re Using Unfamiliar Abbreviations in Briefs, Define Them Up Front

David Post faulted Justice Scalia’s footnote 1 in Monday’s City of Arlington v. FCC (see also this follow-up), so I thought I’d mention my own thought on the subject, because I think there’s actually a useful lesson to law students there.

The footnote, which accompanied a sentence that began, “In July 2008, CTIA—The Wireless Association,” stated:

This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.

And my sense is that the footnote is just a somewhat indirect way to remind lawyers of a useful rule of brief writing — always decode any abbreviations that you use.

Of course, as David points out, it’s not hard for readers to figure out what most abbreviations stand for, with just a bit of research, and the name of the association isn’t that critical in this case in any event. But I take Justice Scalia’s point to be that lawyers shouldn’t put judges to the trouble of doing that research. If you use an abbreviation that your reader is unlikely to know, or for that matter any specialized term that your reader is unlikely to know, make it easy on the reader: define it up front. And don’t just assume that the definition doesn’t matter; the reader of your brief might not share your view. In this case, for instance, a reader might think that understanding what the organization calls itself (especially when it’s a young organization, whose original full name isn’t shrouded in the mists of antiquity) might give him a better picture of the case, and might be annoyed that no decoding was given.

I’m [...]

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Abstracts in Italics

Law review editors: If you publish the abstracts to your articles in italics, please stop. Big blocks of italics are harder to read than ordinary Roman text; that’s why you don’t see books, articles, or newspapers printed all in italics.

There are many ways that you as publishers can use to set off the abstract from the rest of the article — spacing, indentation, borders, and more. There’s no reason you have to use italics for this, and there’s ample reason not to use italics. Nor is there some deeply entrenched custom of using italics: many law reviews indeed don’t print abstracts in italics, but unfortunately quite a few still do. If you’re on the Dark Side of this, come over to the right side. [...]

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I just stumbled across the following in a law review article: “[so and so] recently published a book-length project.” This book-length project is otherwise known as a “book.” The author of the offending phrase is generally an excellent writer, so it happens to the best of us. [...]

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Ward Farnsworth’s Classical English Rhetoric

Back in April, Eugene blogged this book, written by my friend, fellow Justice Kennedy alumnus, and fellow Rolling Stones fan Ward Farnsworth, who is a law professor at Boston University.  I have since been able to read the book, and add my enthusiastic endorsement. 

The book is divided into eighteen chapters, each of which analyzes a classical rhetorical technique, explaining how to use it effectively and providing many examples from literature.  There are six chapters on using the repetition of words (e.g., simple repetition/repetition at the start of a sentence, the end, or both/repetition of the root); six chapters on sentence structure (parallel structure/reversal of structure/inversion of words); and six chapters on dramatic devices (rhetorical questions/correcting oneself/breaking off in midstream/saying things by not saying them). 

I have always been a big fan of parallel structure (which I now know is “isocolon,” although I will promptly forget it).  But I had no idea of the breadth of ways it has been used.  Thus, for example, the book discusses the ways the device can be used to make two claims about the same subject.  They can be consistent claims:

He was a morose, savage-hearted, bad man: idle and dissolute in his habits; cruel and ferocious in his disposition. (Dickens, The Pickwick Papers (1837))

But parallel structure can also be used to make comparisons and emphasize contrast (the second example is my particular favorite).

Married in haste, we may repent at leisure. (Congreve, The Old Bachelor (1693))

The louder he talked of his honor, the faster we counted our spoons.  (Emerson, Worship (1860))

All-strong without, he is all-weak within. (Churchill, radio broadcast to the United States (1938))

The book’s use of examples makes reading it doubly enjoyable.  It is not only an interesting book on a fascinating subject (and surprisingly readable [...]

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You Know There’s Trouble Ahead …

You know there’s trouble ahead when you see, in an early footnote to a law review article (31 U. West Los Angeles L. Rev. 257 (2000)),

Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis hereunder have been italicized, bolded or capitalized accordingly.

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Lousy Legal Writing:

When my kids were small , both took music lessons (and as many of you know, my son Sam is forging ahead with a career as a pianist), and, as a result, I heard an enormous amount of really badly-played music; I probably went to 75 or 100 school-wide recitals and performances, and while they were all immensely delightful and uplifting – there is simply nothing more magical than watching kids make music, no matter what it sounds like – the musical bottom line is that 9 year old kids, even really talented 9 year old kids, can’t be expected to make beautiful music, and by and large they don’t. I realized, though, that I learned an enormous amount about music and music performance from listening to it badly-played, because it helped me to think about, and to appreciate, exactly what it is that is involved in playing music beautifully.

So here’s some really, really lousy legal writing. It’s from today’s Legal Intelligencer, a local trade publication that covers legal developments in and around Philadelphia. I’m quoting the article in its entirety, because it is posted online behind a subscription firewall (and, lest our lawyers get worried, I’m relying upon the fair use doctrine’s protection for “criticism and commentary” in so doing):

Judge Greenlights Cell Phone App Copyright Claims
Shannon P. Duffy
The Legal Intelligencer
January 07, 2011


So [...]

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Man, This Guy Can Write:

Though I’m not that much of an NFL football fan, I can’t help but noticing the extraordinarily good writing of Mike Tanier, who writes for (and the New York Times from time to time). Here are some examples, from his discussion of this week’s games:

On the Jets v Browns: “Eric Mangini is on a cross-country quest to silence his doubters, joined by a ragtag company of spunky rookie quarterbacks, castoff veterans, fleet-footed punters and other misfits. Having conquered the defending champion Saints and vanquished his mentor Bill Belichick, Mangini hosts the Jets, whom he coached through his metamorphosis from Boy Genius to baby-faced Machiavelli before being ripped apart by the tectonic forces of Big Apple expectations and Brett Favre egocentrism.”

And even better, Seahawks v. Cardinals: “The N.F.C. West stages one of its sad little round robins this week to see who gets to go 8-8 and lose, 31-7, to the Saints or Eagles in the playoffs. It’s like a college basketball-style play-in. In fact, don’t give the N.C.A.A. any ideas, or the winner of this game will face the winner of Canisius versus Towson University.”

And Eagles v. Redskins: “All of the campaign strategists who produced effectively virulent political smear advertisements went straight to Washington after the election and, with nothing else to do for 11 months, started writing the copy for Mike Shanahan’s news conferences. Shanahan & Son (you can picture the truck and junkyard in your head, can’t you?) stopped just short of accusing Donovan McNabb of shipping jobs overseas, but they effectively created a divisive, rancorous environment that will make it impossible to get anything done. In other words, our nation’s capital gets the football it deserves.”

Really terrific stuff. [...]

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