This past October, as a Judicial Intern at the United States Court of Appeals for the Seventh Circuit, I had the pleasure of attending an informal, reoccurring brown bag lunch held among the court’s clerks. We gathered in a conference room down the hall from the Dirksen Federal Building’s second-floor cafeteria to hear this session’s guest speaker—Chief Judge Frank H. Easterbrook—lecture informally on legal writing. The judge shared some of his experiences (e.g., his decision-making process*) and his must-read books for legal writers.
The key to solid legal writing, per Judge Easterbrook, is to be brief and articulate: write in short, simple, straight-forward prose. Outline your problem as you would for an intelligent lay person, mindful of the fact that judges are generalists, not specialists. (Judge Easterbrook also noted that judges—unlike those drafting the statutes and regulations judges interpret—are supposed to be out of touch.) To sharpen your writing skills off the clock, read good novels. Read persuasive literature. Challenge your ideological predispositions: conservatives, read the New Republic; liberals, read the Weekly Standard. Don’t read the New Yorker, though: too many attorneys read this publication, according to the judge.
Specifically regarding legal writing, Judge Easterbrook opines that the following books should be present on every attorney’s bookshelf:
1. “Making Your Case: The Art of Persuading Judges,” by Antonin Scalia & Bryan Garner.
2. “The Elements of Style,” by William Strunk & E. B. White.
3. “The Elements of Legal Style,” by Bryan Garner.
4. “The Party of the First Part: The Curious World of Legalese,” by Adam Freedman.
Contrary to the judge’s advice, my legal writing can be overcomplicated and long-winded. The culprit is the way I think; to more fully understand an issue, I write. By allowing myself to formulate the best theories fully on paper, I can identify what works. Perhaps my self-diagnosis is simply a reflection of so often hearing advice like Judge Easterbrook’s. Or perhaps I am in good company? Judge Easterbrook joked about the style guides that Strunk & White could do in only 105 pages (Strunk’s original version? Just 56!) what took Garner 236—noting a lawyer’s tendency to overdo it. So I asked Judge Easterbrook about this problem, questioning whether he, too, has to draft several opinions before getting his mind around an issue. Do you, like me, judge, have to write up an issue to fully understand your own take? No, he answered flatly. Oh.
The thought of populating a blank screen with gold the first go-round daunts. For now, a mere year and a half into courting the jealous mistress, I take comfort in the fact that legal issues I explore will require less of a mental work-up with more practice and exposure. Or perhaps with a bookshelf lined by works of Judge Easterbrook’s writing gurus? Marquette community: what are your recommended legal writing guides?
*Judge Easterbrook reads materials in the following order to prepare an opinion: (1) the district court opinion (for sense); (2) the appellant’s brief—beginning with the summary of the argument section; (3) the facts and holding from the district court’s opinion, specifically checking whether the lower court addressed a different issue than that framed within the appellant’s brief; (4) cited opinions; (5) the appellee’s brief, which may, per Judge Easterbrook, provide answers absent in the district court’s opinion. On what the judge calls an “extended process of getting more information and doing more thinking,” a week before oral arguments—with his tentative views formed—Judge Easterbrook consults his clerks. The case is then argued, the panel meets and discusses the appeal, and then the writing judge goes to work on his or her portion of the legal writing conversation: the judicial opinion.
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Excellent advice from Judge Easterbrook. I would also add that lawyers should realize that good non-legal writing and good legal writing are siblings, not second cousins. Too many attorneys’ briefs contain stilted sentences and awkward diction in a clumsy attempt to sound “lawyerly.” Attorneys are professional writers. We should remember this and stop trying to write like doctors.
A great legal writing book is Opinion Writing (italics) by Judge Ruggero Aldisert of the Third Circuit Court of Appeals. Even if you do not work for a court, this book is worth reading because it contains so many valuable nuggets on the fundamentals of good legal writing. For example, I learned to hate footnotes after reading this book. If an argument is important, leave it in the text of the opinion or brief. Footnotes should only be used as a last resort when certain content would disrupt the flow of a sentence. More to the point, Judge Aldisert relayed one of his favorite jokes about footnotes: the man who stops and reads a footnote is the same man who would answer a knock on his bedroom door on his wedding night.