What’s Your Favorite Legal Quotation?

It’s time for another in our semi-regular series of questions posed to Marquette Law faculty: What’s your favorite legal quotation? I’ll go first. There are a number of quotations that I could choose from, from cases (“The common law is not a brooding omnipresence in the sky”), apocryphal anecdotes (“Your honor, ten dollars wouldn’t pay for half the contempt I have for this court!”), or law review articles (“There are two things wrong with almost all legal writing. One is its style. The other is its content.”).

But my favorite, the one I quote more often than any other to students, clients, and anyone else who will listen, is not attributable so far as I know to any particular source. I heard it first from a partner I worked for, but I have since run across it in multiple other venues. It’s about litigation in court, and it goes something like this:

The most rock-solid, knock-down, absolutely sure-fire legal argument you can imagine has about an 85% chance of success.

I like this quotation because it pithily illustrates the dangers of over-confidence in litigation. There are at least two ways an assessment of one’s chances of success can go wrong.

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Constitutional Rights in Action

All eyes are on Wisconsin these days.  Governor Scott Walker unveiled details of his budget repair bill on February 11; the bill itself is 144 pages, but provisions that immediately captured attention were those that remove the collective bargaining rights of most state and local employees.  By Monday, February 14, when the bill was introduced, protestors began to fill the Capitol building in Madison.  As the week went on, more and more people descended on the Capitol to protest the passage of the bill, with Saturday’s crowd topping at an estimated 68,000, 60,000 of whom flooded the Capitol grounds and square, while another 8,000 filled the Capitol building itself.  Even more were expected yesterday, which was a furlough day for many state employees.

What is happening in Madison, Wisconsin, is monumental, and I am not solely referring to the proposals contained in the bill.  What is exceptionally important here is that we are able to see the expression of constitutional rights in a most obvious way, a fact that I think has received little attention.

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Brevity in Lincoln’s Writing

Professor Julie Oseid examines Abraham Lincoln’s writing in her article The Power of Brevity:  Adopt Abraham Lincoln’s Habits, 6 J. ALWD 28 (2009).  Based on her review of Lincoln’s writing, Oseid recommends that lawyers use his “habits of writing early, visualizing audience, and ruthlessly editing.”  (page 29)

Oseid starts with the premise that “[t]he goal of brevity should be clarity.” (29)  Lincoln, she says, described the opposite of brevity when he said that another lawyer could “’compress the most words into the smallest ideas of any man I ever met.’”  (29)  Brevity does not sacrifice precision, however, and a writer must be aware of concepts like the rhythm and sound in phrases like “’[f]our score and seven years ago.’”  (30)

Brevity has persuasive power.  (30)  Oseid quotes Justice Antonin Scalia and Bryan A. Garner on brevity in Making Your Case: The Art of Persuading Judges:  “’Judges often associate the brevity of the brief with the quality of the lawyer.  Many judges we’ve spoken with say that good lawyers often come in far below the page limits—and that bad lawyers almost never do.’”  (30)

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