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Bar News - April 4, 2008


In Series of Videos, Supreme Court Justices Make Their Case

By:
 
 
Hon. Antonin Scalia
 
 
 
Hon. Clarence Thomas
 
 
 
Hon. Ruth Bader Ginsburg
 
 
 
Hon. David Souter
 

They are raw and unvarnished, like what might happen if you turned a videocam on yourself in your garage and started talking.

But the collection of videos on LawProse.org were shot at the Supreme Court and they star eight of the nine justices speaking passionately, sarcastically, angrily, into the camera as they answer questions about brief writing, oral advocacy and their own love-hate relationships with the written word.

Their interviewer, legal writing guru Bryan Garner, quietly posted the eight videos on the Web site in January. Garner has interviewed dozens of judges, lawyers and writers over the years, seeking video clips for use in his profitable legal writing seminars. But he realized the interviews with the justices, conducted a year ago or more, were a unique treasure that he should not profit from, so he put them up without restriction, editing, fee or fanfare.

Since then, through word of mouth alone, links to the site have raced from one appellate law office to another.

In front of their computers, lawyers who make their living trying to fathom the justices’ preferences have watched the videos hour after hour, transfixed by what they are hearing from the mouths of the normally private, silent justices. It is as if the College of Cardinals had suddenly decided to go on camera to unlock the secrets of choosing a pope.

The justices’ pet peeves spill forth, and lawyers are taking notes.

Chief Justice John Roberts Jr., for example, thinks lengthy citations to Web sites that are now common in briefs are an "obscene" distraction "with all those letters strung together," though he does not offer an alternative. Another bias: Roberts thinks the word "which" should be avoided almost every time. "It slows me down; it starts to sound like one of those old 19th century contracts -- ‘which’ and ‘wherefore.’"

Long-winded briefs bother the chief even more. "I have yet to put down a brief and say, ‘I wish that had been longer,’" Roberts says dryly.

Justice Stephen Breyer seconds that emotion. "If I see [a brief that is] 50 pages, it can be 50 pages, but I’m already going to groan." On the other hand, he says, "If I see 30, I think, well, he thinks he has really got the law on his side because he only took up 30."

Justice Anthony Kennedy, it turns out, hates when lawyers turn nouns into verbs by tacking on "-ize" at the end, as in "incentivize." Such showy, made-up words, he sniffs, are "like wearing a very ugly cravat."

And Justice Antonin Scalia can’t stand it when briefs refer to a precedent "and its progeny." He growls, "I think it was wonderful the first time it was used. It is trite now. Terribly trite. Get some other expression."

Typographical errors are a credibility killer, Scalia adds. "My goodness, if you can’t even proofread your brief, how careful can I assume you are"

in citing relevant cases?

Scalia also thinks that lawyers are wasting their time when they write a summary of their argument at the beginning of a brief. "I mean, why would I read the summary if I’m going to read the brief? Can you tell me why I should read it?"

But if you skip the summary to please Scalia, you risk annoying Justice Clarence Thomas. He tells Garner the summary section is the most important part, acting as a preview "like giving you, you know, what’s going to be on TV next week."

The tapes offer more than the justices’ idiosyncrasies. Their early experiences with writing come through vividly, even intimately. Because they are in a writing profession, the justices clearly recall the first time they put pen to paper -- or the first time parents critiqued them.

Justice Samuel Alito Jr. recalls that his father, a onetime English teacher, would "pick apart every sentence and every word" of school compositions he had written. "Sometimes a pretty painful experience," Alito says.

Writing was excruciating for Thomas as well, he confesses. Thomas grew up speaking Geechee, a coastal Georgia dialect, he tells Garner, so when he was writing essays at the Catholic seminary he attended, "I looked up the spelling of every word. I had my little Funk & Wagnalls [dictionary]" and he used it so much, the back cover "eventually just fell off." It was not until his late teens or early 20s, says Thomas, that he became comfortable speaking standard English.

Justice John Paul Stevens’ mother was an English teacher, his father wrote poetry and, he tells Garner, "I had three older brothers who are probably all smarter than I am. I learned a lot from them."

Kennedy’s first experience with writing, he confesses to Garner, was "rather sad." As a preteen, "I wasn’t happy with school, so they found me a job," he says. It was a job as a page in the California Legislature. His father was a Sacramento lawyer and lobbyist. There, Kennedy recalls, he would mark up unclear wording in legislation. But he was not a confident writer even at Stanford, Kennedy adds, confiding that when he handed a short story assignment in to the professor, author Wallace Stegner, "my hands were shaking."

For her part, Justice Ruth Bader Ginsburg learned writing from the great Vladimir Nabokov at Cornell. Asked by Garner if she had stayed in contact with Nabokov after college, she smiles and says, "Not after he wrote ‘Lolita’ and he made a huge success and went off to Switzerland to catch butterflies."

The only justice who would not talk to him, Garner says, was David Souter.

"I got the most polite rejection letter from him," Garner says. "He just prefers not to go before a camera."

The interviews took place a year or more ago, Garner says. And it was his boisterous conversation with Scalia that led the two of them to collaborate on a book that will be published April 28 titled "Making Your Case: The Art of Persuading Judges."

Garner says he has considered publishing the transcripts of his video interviews with the eight justices, too, but if he does, he won’t take royalties.

Editor of Black’s Law Dictionary and author of several books on legal writing and language usage, Garner thinks that taken together, the eight interviews reveal a "composite judicial personality" that places a premium on clear writing, getting to the point quickly and deleting legalese.

Litigators who fail to heed the justices’ warnings, Garner says, are "missing the boat." But so far, it seems the messages in the videos are connecting with lawyers who have seen them.

"They’re wonderful. You really get a sense of what these people are like,"

says Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, who ran across the videos last month. "Hundreds of interesting nuggets," says Untereiner’s partner, Roy Englert Jr.

"A treasure trove," says Evan Tager of Mayer Brown Rowe & Maw, who is having a paralegal make transcripts.

Tager says he has already incorporated material from the videos into a CLE program he gives. He is featuring the six-word answer Kennedy gave when Garner asked him to name the elements of a good writing style.

"Lucid. Cogent. Succinct. Interesting. Informative. Convincing," says Kennedy, pausing for effect after each word. It was as if he’d been waiting for decades to answer that question

© 2008 ALM Properties, Inc. All rights reserved. This article is reprinted with permission from Legal Times (www.legaltimes.com), an ALM publication.

To view the videos of the Supreme Court justices in their entirety, go to www.LawProse.com and click on "Supreme Court Interviews."

 

 

 

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