Thursday, June 9, 2011

The American Society of Legal Writers' Supreme Court Interviews

The American Society of Legal Writers recently published a fascinating series of interviews with eight of the nine Supreme Court Justices. You can link to the full interviews at the Society's website "Scribes" (here).

The Scribes interviews are a great opportunity to peer inside the heads of the Justices. I particularly enjoyed the verbatim transcriptions; this allows the reader to trace the Justices' thought-processes as they think about the art (and science) of rhetoric and prose.

One theme that arises in the interviews is the Justices' preference for written and oral arguments that are (1) concise and (2) clear. This would seem to be stating-the-obvious, but in a profession where a seemingly simple contract can stretch to 10 or 20 pages of legalese, the advice is well-taken.

Here are some highlights:

When asked if grammatical errors bother him, Chief Justice Roberts analogized to listening to music and hearing a misplayed note:
I’m not going to stop in the middle and say someone’s used a wrong bit of grammar. No ... But it’s like music. If you’re listening to music and somebody hits the wrong note, it kind of detracts from it, and you hear it. It’s the same way there. If they’re making a point, and they just . . . You notice it, and if you notice it, you’re not noticing the argument; you’re noticing the words. And that’s unfortunate.
Justice Ginsburg thinks everyone would benefit from minimizing the legalese:
Any profession has its jargon. The sociologists have lots of fancy words, and some of them think somehow that puts them on a higher plane. I can’t bear it. I don’t even like legal Latin. If you can say it in plain English, you should. For one thing, you would have much shorter documents than we now do. For another thing, the public would understand what lawyers do, what judges do, better. They might understand it even from reading an opinion or from reading a brief instead of getting it filtered through the lens of a journalist. 
Justice Scalia concurs with Ginsburg and provides specific examples of legal terminology that would be better-off lost:
Avoid legalese ... A good test is, 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. Another one of my bĂȘtes noires of legalisms is nexus. Yeah, nexus. What is it? It’s Latin for “connection.” You don’t make it more scientific at all by calling it a nexus ... And avoid trendiness. That’s probably the other extreme of legalese. I never use, ever use, nor let my law clerks use such trendy expressions as “the First Amendment informs our consideration of this.” The first time that was used, that was very nice. It was a nice metaphor. But it has lost all of its vividness, and it’s just cant. Another example of the same is “Marbury v. Madison and its progeny.” That was wonderful the first time it was used. It is trite now. Terribly trite. Get some other expression.