Bar News - October 19, 2016
Court News: Legal Prose Expert Garner: Writing is ‘Performance’
By: Dan Wise
Bryan Garner, editor of Black’s Legal Dictionary, and author of more than a dozen books on legal writing, led off the US District Court’s Federal Practice Institute on Oct. 7 with a fast-paced hour of instruction and general admonishment.
“Every time you write, it’s a performance,” he said at several points as he spoke from in front of the bench in the grand, wood-paneled, high-ceilinged Courtroom 3 to a packed gallery of several hundred attorneys on hand for a full day of continuing legal education programming.
In a presentation of slightly more than one hour, Garner packed in pet peeves, quizzed the audience on good versus bad prose, handed out copies of his books on legal writing, and presented maxims and strategies he’s developed from a career devoted to improving the art of written argument.
An all-purpose approach he advocates for in any piece of persuasive writing is what he calls “the deep issue.” Rather than beginning with procedural niceties (that are covered by the titling of a brief and other filing details) he counsels attorneys to address the issues and remedies plainly and directly at the start. Garner said he had devised this strategy in collaboration with the late US Supreme Court Justice Antonin Scalia, who died in his sleep while on vacation in Texas last year. Garner paused momentarily as if to collect himself when mentioning “my late co-author” before launching into a bracingly simple explanation of how to address a topic head-on with the “deep issue.”
“The deep issue consists of: statement, statement, and question. You should get to the question mark by the 75th word,” Garner declared, adding that testing has demonstrated that increasing the verbiage in the opening paragraphs of an argument diminishes its effect. Elaborating on the strategy, Garner said the first statement, or “major premise” is the rule or standard; the second statement, or “minor premise” is the gist of what happened, and the third sentence is the essential question of the pleading, plainly stated.
Garner also urged attorneys not to overlook the impact of a table of contents. “Most tables of contents look like ransom notes,” he said, referring to excessive and incorrect capitalization that predominates in current practice. He urged attorneys who are either writing their own pleadings or delegating the task to an associate, to draft a table of contents before writing the brief. The table of contents can be more than a guide to the document, but a roadmap of major points in the brief. Compose it as a series of what he termed “point headings (15-35 words each) that state each major contention (or rebuttal) in sentence form. That makes the table of contents a persuasive document and a roadmap for the reader to trace a writer’s argument.