Top ten legal writing hints when the audience is a cranky federal trial judge

I have been asked to post something about legal writing. I don’t know a damn thing about legal writing, as this blog constantly proves.  But, hey, ask and you shall receive.

A word about the literary form:  I prefer the “top-ten” form for trenchant legal analysis. Awhile back A while back (I have no clue which one is correct), and using this form, I wrote a piece about their Eminences and the mess they made of the federal Sentencing Guidelines.  In some circles, it was well-received.  Therefore, and proving that you can’t teach an old judge new tricks (or shticks), I once again adopt the genre for this series of profound musings.
So, here are my top ten hints for submitting briefs to me and other all-knowing beings who ascend the federal trial bench, both literally and figuratively:
10. Get a good editor.  Never send me something unless someone less dumb than you has read it first.  Jan, one of my brilliant career law clerks, is editing this piece.  Sometimes she annoys me though.  Just now, I really wanted to use the word “retarded” rather than “dumb.”  Jan said she’d quit if I did, so I relented.  I can’t stand the thought of doing my own work.
9. Burn anything that Bryan Garner has written.  He really knows his stuff, but Strunk and White’s The Elements of Style said it all.  Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules.  Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.
8. Unless you are retrograde (Jan’s word), or the judge won’t allow it, hyperlink to cases and citations to the record.  Remember, 9 out of 10 times a law clerk—not the trial judge—is the only one closely reading your stuff.  (Oh, don’t pretend to be shocked!)  The easier you make it for the law clerk, the less you have to worry that the clerk will go wild.
7. Justice Scalia writes smack.  You can’t.  Justice Kennedy waxes grand eloquent.  You can’t.  Justice Breyer writes simply.  You should.
6. Is it too much to ask you to read and follow the local rules?  Remember the venerable Latin legal maxim:  Rules are the opposite of sucks.
5. Please don’t “bitch-slap” your opponent.  It only makes me want to do the same to you, but in super slow motion.
4. If you send me a brief knowing that you will lose, but you are hoping to “educate” me, you are, in the words of the greatest of all legal minds, Gene Wilder, one “stupid, ignorant son of bitch, dumb bastard.
3. The best brief disproves the aphorism that “legal writing is to writing as military music is to music.”  When accepting the American Society of Legal Writers lifetime achievement award, Justice Scalia was correct to say that he does notbelieve that legal writing exists.”  Then again, Scalia really likes Jack Benny jokes.
2. I have always appreciated the writing style used in the “Dick and Jane” books.  In addition to being vaguely titillating (which is always a plus), even I could understand the prose without having to read a sentence twice.  I wish that were true of most of the verbiage you send me.
1. It would be nice if you gave me a concise and accurate statement of the facts backed up by citations to the record and addressed to the elements of the case.  The Court of Appeals does not give a rat’s ass about what I think of the law, but it does care (at least a little) what I think of the facts.  Comprende?  (For emphasis, please see use 3, and example 2, in the Urban dictionary.)
RGK
Photo credit:  Legal text, written in a Gothic hand.  Penn Provenance Project's photostream per Creative Commons license.

Photo credit: Legal text, written in a Gothic hand. Penn Provenance Project’s photostream per Creative Commons license.

Scalia and Garner vindicated–Posner not so much

The dispute between Justice Scalia, Professor Garner and Judge Posner about the 2012 Scalia and Garner book Reading Law: The Interpretation of Legal Texts became legendary for nerds like me who have no life. I took a nasty poke at all three of them in my “Top Ten” post on legal writing. (Point 9.)  The spat between these three captivated the blogs and swords were drawn on both sides. That controversy died down until very recently.

In response, Professor Garner did something highly unusual.  He hired someone to objectively review the controversy.  The report is now out.

Runs batted in: Scalia and Garner 8 and Posner 1 (with 3 partials leaning Posner).

The author, a highly regarded appellate lawyer (Steven Hirsch), was paid a token fee of $500. He was given free rein to write whatever he believed. There is no reason to think he was biased. Indeed, he said that “I am actually a great admirer of Posner. He is a national treasure. I believe in his brand of legal realism[,]” though Posner should have been “a little more careful” in his criticisms.

Maybe I am credulous, but this effort by Garner strikes me as particularly praiseworthy. It represents a concrete commitment to introspection, humility and intellectual honesty. Scalia and Posner could use a dose of those values (although I deeply admire each of them).

Anyway, good for Bryan Garner.

RGK

The top ten things I learned from being a (fill in epithet of choice)

By now, you know my posts (here and here) about lawyers who are females and courtroom attire stirred up a controversy of stunning proportions.  Indeed, the device in this platform that counts such things tells me those stories generated more “hits” than any other related posts except for the ones about how my sentencing instincts suck as evidenced by Shon Hopwood’s remarkable redemption. (See here and here.)

Some of you may know also that I hold an affection for top ten lists. (See, e.g., here.) I revert to that shtick once again.

Here are the top ten things that I learned from writing the courtroom attire posts:

1. I shouldn’t believe my own press. (See here (“Courts”) and here “Miscellany” at p. 126).)  I am not nearly as good at blogging (writing essays) as I thought I was. That is, the only thing bigger than my ass is my ego.

2. A highly regarded legal blogger and true trial lawyer accurately put my grievous error this way:

“Judge Kopf was terribly wrong to have framed his point the way he did. Not because he violated the sensibilities of Millennials and Gen-Xers, who have been weaned on Orwellian notions of language to the point that they can’t even begin to grasp that there are good people who use words that they were taught are evil, but because he didn’t realize that his audience consisted of people for whom these words meant something very different.”

SCOTT H. GREENFIELD, A Poor Choice of Dirty Old Words, Simple Justice (March 29, 2014).

3. I should never, never, never have included my kids and the law clerks in this type of post. As one gentle soul who loves me unconditionally remarked with resigned sadness, “you see your work and the people who are close to you as being the same thing. We don’t see it nor want it that way.”

4. The “true story” I used in the post was untrue, although it was essentially accurate. It was an amalgam intended to take separate but similar experiences of mine in the courtroom and to blend them together precisely so I didn’t identify anyone. But because of my evasion and ineptitude, I set off a snipe hunt. I am so terribly sorry for that.

5. I can’t stop berating myself for giving aid and comfort to those who say federal trial judges shouldn’t blog. This is a powerful medium that can do much good in promoting an honest understanding of the federal trial court (a place that is not an abstraction), but I just handed the other side a sharp-edged weapon to maintain a status quo of sanitized mythology.

6. I despise faux apologies. So, for the uber outraged, hear this: I believe what I wrote. I extend no apology of any kind to those readers who wanted to be offended by my writing. And, eschewing mere truculent defiance, the vitriol will not deter me from judging and blogging in the future. By the way, and I suppose this is quaint, I view blogging as an opportunity to write a collection of short essays around a common theme. From the reader’s perspective, that means one might profitably look at the many blogs posts that come before the one in question. That is called the search for context.

7. I always knew edgy humor was both dangerous and hard to pull off as a writer, but it is much harder and more dangerous than I had ever imagined. That is an observation, not an excuse.

8. Because I was too defensive, I wrote Erin Grace, a real journalist, with a kind heart, that I don’t care how she remembers me. That was also untrue.

9. I harmed my District of Nebraska colleagues. In particular, I put my Chief Judge, Laurie Smith Camp, a person whom I revere, in a horrible position. That makes me sick at heart.

10. Most importantly, the federal trial courts (including the one in which I am privileged to preside) are places where all female lawyers are safe. Thus, I am deeply ashamed that my post generated the following fearful comment from a real trial lawyer that I presume is entirely genuine: “Wow, am I ever glad I don’t have to appear before you. I would be very uncomfortable, having read your post.” Female AFPD [Assistant Federal Public Defender] says: March 26, 2014 at 5:36 pm.

RGK

Orwell lives

I adore Bette Midler.  She is so talented.  Intellectually, she is very bright.  And, she is funny in a wonderfully theatrical way.  Truly, she is the Divine Miss M.

Now, forgive the cognitive dissonance as I transition to George Orwell.  At the end, I’ll get back to the Divine Miss M.

In my legal writing post, a commentator (Matt) and I discussed George Orwell’s 1946 essay “Politics and the English Language.”  Orwell’s essay dealt with abuses of the language in a political (and by extension legal) context.

He concluded his essay this way:

I have not here been considering the literary use of language, but merely language as an instrument for expressing and not for concealing or preventing thought. Stuart Chase and others have come near to claiming that all abstract words are meaningless, and have used this as a pretext for advocating a kind of political quietism. Since you don’t know what Fascism is, how can you struggle against Fascism? One need not swallow such absurdities as this, but one ought to recognize that the present political chaos is connected with the decay of language, and that one can probably bring about some improvement by starting at the verbal end. If you simplify your English, you are freed from the worst follies of orthodoxy. You cannot speak any of the necessary dialects, and when you make a stupid remark its stupidity will be obvious, even to yourself. Political [legal] language — and with variations this is true of all political parties, from Conservatives to Anarchists — is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind. One cannot change this all in a moment, but one can at least change one’s own habits, and from time to time one can even, if one jeers loudly enough, send some worn-out and useless phrase — some jackboot, Achilles’ heel, hotbed, melting pot, acid test, veritable inferno, or other lump of verbal refuse — into the dustbin, where it belongs.

(Emphasis added.)

I began thinking hard about Orwell’s essay after Matt reminded me of it.  How frequently do I violate Orwell’s admonitions in my daily judge-job?  As it turns out, I rely upon “verbal refuse” just about every day. Let me give you a prime example.

When I sentence someone in a criminal case, I must resolve objections to the probation officer’s detailed investigative report. Then, I must grant or deny any motions.  After that, I must calculate the applicable Guideline levels. Finally, the law requires that I make an oral statement giving the reasons for my sentence.  It is at this point that I want the reader to recall what Orwell wrote.

To comply with the requirement that I state my reasons for a sentence, I have a “song and dance” that I invariably follow.  It goes like this:

To reflect the seriousness of the offense, to promote respect for the law, to provide for just punishment and to afford deterrence, and further recognizing that the Guidelines are advisory, and considering all the statutory goals of sentencing, I impose the following sentence: [state sentence].

As part of my “song and dance,” I then make inquiry of the lawyers.  “Do counsel have any questions about my judgment and sentence?”  If so, I answer the questions. Then, and here is the trap, “Do counsel want any further elaboration of my statement of reasons?”  If counsel do not request any further elaboration, the reasons for my decision are bullet proof on appeal for plain error purposes.  If counsel do request some further elaboration, I give it to them in spades.  Either way they’re screwed.

As I think about it, I am probably doing what Orwell railed against.  But, never fear, I have all sorts of reasons (rationalizations) why I will continue to do what I do.

So, back to the Divine Miss M.  I have my own Divine Miss M. She is my oldest daughter Marne.  She is very bright, funny and wonderfully theatrical.   For example, my Divine Miss M. has flamboyantly taken me to task for forgetting that Orwell’s 110th birthday was last Tuesday, June 25, 2013.  She punctuated her point by emphasizing that the Dutch put little party hats on the CCTV cameras in Utrecht as an homage to Orwell.  She chastised me for failing to rise to the occasion.

My Divine Miss M. has a point.  So, since I am a serial abuser of the language in a manner that Orwell would have deplored, the least that I can do is say, “Happy belated 110th Birthday, George.  You’re a better man than I.”

RGK

Image credit:  This is the cover art for the album The Divine Miss M by the artist Bette Midler. The cover art copyright is believed to belong to the label, Atlantic Records, or the graphic artist(s). Fair use is claimed.

Image credit: This is the cover art for the album The Divine Miss M by the artist Bette Midler. The cover art copyright is believed to belong to the label, Atlantic Records, or the graphic artist(s). Fair use is claimed.

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