Bar News - March 18, 2015
On Writing Well... A Conversation with the Editor of Black's Law Dictionary
By: Lisa Wolford
Bryan Garner is editor-in-chief of Black’s Law Dictionary and the author of many influential legal advocacy books, including A Dictionary of Modern Legal Usage, The Elements of Legal Style, The Winning Brief and The Winning Oral Argument.
Lisa Wolford is a fan. In anticipation of the New Hampshire Bar’s April 2015 Appellate Advocacy CLE, she asked if he would submit to questioning. He agreed.
LW: Your conversation about writing with the late author David Foster Wallace is published in your book Quack This Way. You ask him what it means to “write well,” and he says, “Writing well means to communicate clearly and interestingly and in a way that feels alive to the reader.” Does that also sum up your definition of “writing well”?
BG: That’s a good definition. I think it sums things up really well. I often quote my friend and mentor, John Trimble, as saying that good writing makes readers feel smart; bad writing makes readers feel stupid. It’s all about the reader.
LW: Foster Wallace said he thought that 99 percent of judges would reward a writer “for clarity, for precision, for minimizing the unnecessary effort they have to make.” But I often wonder what it matters whether lawyers write well or not. If the facts and law are on your side – and generally they are one side or the other – a middling or even poorly written pleading shouldn’t matter to the outcome, should it?
BG: It typically does affect the outcome. Poor writing can lose a strong case. Brilliant writing can win a marginal case (not a dog of a case). That’s because in “poor writing” vs. “brilliant writing,” I’m including positions taken – the substance of what is being said as well as the manner of saying it. If you write well, you think well: you arrive at better, more refined arguments. It’s not just a matter of getting the syntax and the punctuation right. But getting those things wrong will also distract the reader from whatever points you’re trying to make. So good writing is a marriage of really good ideas with really good expression of them.
LW: Another way of asking the question above: Why shouldn’t the reader – in a lawyer’s line of work, the judge – have to share the burden of understanding the merits of an argument?
BG: There’s always going to be that burden. But it should be as invisible a burden as possible. There’s no such thing as a captive audience. Readers will rebel. A poorly written motion or brief simply isn’t going to get as much attention as a well-written one. That’s the reality whether we like it or not. How could it be otherwise?
Writing well in law means in large measure front-loading the argument so that the reader doesn’t have to excavate it from pages three to five, or even deeper in the brief. It means stating the problem so straightforwardly that anyone could understand it from reading page one – no further reading being absolutely necessary. But it also means stating it so well that any reasonably intelligent person genuinely wants to read further because page one is so enticing.
All this is difficult to achieve until you learn the method of good, solid exposition.
LW: In Making Your Case, you and Justice Scalia warn brief-writers off of Latin phrases. Yet the 2014 edition of Black’s contains about 4,000 Latin maxims. Why should we resist?
BG: Yes, we’re not fans of show-offy phrases like cateris paribus, inter alia, mutatis mutandis, and the like. Peppering your writing with those things tends to suggest intellectual insecurity.
On the other hand, we come from an Anglo-American tradition in which, in days of yore, every lawyer knew and used Latin. That’s not so anymore, but it was commonplace before about 1850. Because we still occasionally refer to these old texts, I believe as a lexicographer that my editions of Black’s Law Dictionary should fully inform anyone who needs to consult the book to understand older legal texts – or perhaps newer legal texts from the civil-law tradition – in which Latin phrases and sentences appear more often. So I’ve added a great deal of historical material to Black’s over the four editions in which I’ve served as chief editor. But most of the additional entries are for modern legal developments.
LW: In his 2001 article, “Tense Present,” written in appreciation of your book, A Dictionary of American Usage, Foster Wallace said there’s a certain irony that comes with the publication of a book on grammar and usage, because the people who need it most are the people who are bound to be the least interested. How do you get beyond preaching to the choir? How do you convince those who just don’t care? Why do lawyers resist good writing?
BG: That’s a really tough question. I decided years ago that I can’t reach everyone. I know that. So I don’t even try. I’d be perfectly happy if I reached only those who are amenable to learning. There are quite enough lawyers in that camp.
But let me amend that answer. I suppose that when I’m before a large group of lawyers, I do try to open everyone’s eyes to the advantages of improvement. Lawyers are competitive people, and if they can be made to believe that they’re not fully taking advantage of a skill they could cultivate, most will start to care.
LW: You’ve said that oral argument is not nearly as important as brief writing. I happen to share that opinion, in part because I think I’m a better writer than I am orator, and in part because it’s hard to conclude that a litigator will be more thoughtful and therefore more persuasive during oral argument than during the writing process. Do our appellate courts over-rely on oral argument?
BG: I don’t think they do over-rely on oral argument. All the judges I talk with say that the briefs are much more important. Oral argument is mostly for clarifying points that judges have lingering doubts about.
But to the extent the briefing is poor, oral argument becomes more important. Judges will give the brief a try, but if it’s too opaque to get keep their attention, then the chances are the bench will be cold going into the argument. I can’t blame the judges. They have no duty to allow inept writers to waste their time.
LW: What’s the one thing you wish lawyers would take the time to do better, both writing- and oral argument-wise?
BG: Frame issues clearly. That is, learn to write multi-sentence issue statements of no more than 75 words, ending in a question mark, and coolly proceeding from the major premise to the minor premise, without hyperbole. Then pose the question. Doing this helps them think more clearly and argue more effectively.
LW: What single thing can a lawyer do to improve his or her writing?
BG: Read more good nonfiction –
always with an eye on technique.
Lisa Wolford is an assistant attorney general in the NH Attorney General’s Office Criminal Justice Bureau, Appellate Unit.