How to (or Not to) Write for the Supreme Court

by Lee Gesmer on May 20, 2011

How to (or Not to) Write for the Supreme Court

“I’m sorry this letter is so long, I didn’t have time to make it shorter.”
George Bernard Shaw

Non-lawyers see lawyers arguing before judges on television and in the movies, and they get the mistaken impression that oral argument is the heart and soul of lawyering.  In fact, it’s not.  Most judges based their decision on a careful reading of the legal briefs submitted to them.  That’s particularly true of the Supreme Court, where each side to a case may spend hundreds or thousands of hours preparing their written briefs, and get all of 30 minutes per side for oral argument.  This wasn’t always the case – until the mid-1800’s the time for argument was unrestricted, and could go for days.  In 1849 the time per side was limited to two hours.  This was reduced to one hour in 1925, and 30 minutes in 1970.  And, as Justice Alito recently noted, half of the words spoken during those 30 minutes are spoken by the Justices themselves, while questioning the lawyers.

As the time available for oral argument has diminished the importance of written briefs has increased, and I think most lawyers would agree that most cases are won or lost on the briefs.  Hence, the increase in studies of how to use the written word most effectively to persuade Supreme Court justices.

In late 2006 and 2007, language savant Bryan Garner interviewed eight of the nine then-sitting Supreme Court justices on their views on writing and advocacy.   He posted videos of these interviews online.

Now, he has published full transcripts of the interviews in The Scribes Journal of Legal Writing.

The interviews are quite educational, and also amusing.   Most of what the justices have to say is no great surprise.  A few choice quotes:

• “I have yet to put down a brief and say, ‘I wish that had been longer’” (p. 35).

• “What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law” (p. 37).

• “I love But at the beginning of a sentence . . .” (p. 60).

• “[G]ood counsel welcomes, welcomes questions” (p. 70).

• “So the crafting of that issue . . . Man, that’s everything.  The rest is background music” (p. 75).

• “[T]he genius is having a ten-dollar idea in a five-cent sentence, not having a five-cent idea in a ten-dollar sentence” (p. 100).

• “I can’t bear it [legalese]” (p. 141). “Terrible! Terrible!” (p. 156).

The entire transcript is almost 200 pages long, and is recommended reading for those who want to understand how Supreme Court justices — who are likely representative of most judges in most respects — view the role of written persuasion.

 

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