If A Literary God Wrote An Appellate Brief . . .

What would his sentences be like? Would they read like his prose, if the prose that he wrote read like this?

“It was this look on the face that (slowly) turned left to look at her from the ambulance–a face that in the very most enuretic and disturbing way both was and was not the face of the husband she loved — that galvanized Jeni Roberts awake and prompted her to gather every bit of her nerve together and make the frantic humiliating call to the man she had once thought very seriously of marrying, an associate sales manager and probationary Rotarian whose own facial asymmetry — he had suffered a serious childhood accident that subsequently caused the left half of his face to develop differently from the right side of his face; his left nostril was unusually large, and gaped, and his left eye, which appeared to be almost all iris, was surrounded by concentric rings and bags of slack flesh that constantly twitched and throbbed as irreversibly damaged nerves randomly fired — was what, Jeni decided after their relationship foundered, had helped fuel her uncontrollable suspicion that he had a secret, impenetrable part to his character that fantasized about lovemaking with other women even while his healthy, perfectly symmetrical, and seemingly uninjurable thingie was inside her.” (Brief Interviews With Hideous Men, “Adult World (I),” p.153.)

Scary? Sure, if you’re the appellate justice’s long-suffering clerk. You might wonder, then, why legal writing guru Bryan Garner took the time to interview said Literary God–David Foster Wallace–about persuasive legal writing, before the LG’s untimely death by suicide in 2008.

Well, wonder no longer. As highlighted in a recent article by Garner himself in the ABA Journal, it turns out that, although his fiction is often . . . er . . . challenging, DFW has something to say about persuasive writing, not only from the perspective of an innovative novelist, but also as both an essayist and an academic. Among the things he said:

“So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

I’m thinking of the argumentative things that I like the best, and because of this situation the one that pops into my mind is Orwell’s “Politics and the English Language.” If you look at how that’s put together, there’s a transition in almost every single paragraph. Like: “Moreover, not only is this offense common, but it is harmful in this way.” You know where he is in the argument, but you never get the sense that he’s ticking off items on a checklist; it’s part of an organic whole. My guess would be, if I were an argumentative writer, that I would spend one draft on just the freaking argument, ticking it off like a checklist, and then the real writing part would be weaving it and making the transitions between the parts of the argument—and probably never abandoning the opening, never letting the reader forget what the stakes are here. Right? Never letting the reader think that I’ve lapsed into argument for argument’s sake, but that there’s always a larger, overriding purpose.”

I’m looking forward to the book that contains the fruits of this interview, Quack This Way: David Foster Wallace & Bryan A. Garner Talk Language and Writing. Royalties from the book will apparently support the David Foster Wallace literary archive housed at the Harry Ransom Center at the University of Texas at Austin.

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Four Rhetorical Figures That Will Enliven Your Legal Writing

Why introduce rhetorical figures into your legal writing? Well, if done right, they can elevate good writing to great writing. As pointed out by that acknowledged legal writing guru, Bryan Garner, in The Elements of Legal Style:

“Many of our most gifted legal writers have used figures of speech, or ‘graces of language’–not just insidious vagaries–to give their prose greater force. Figures of speech help make writing something more than serviceable; they help make it memorable.” (Id. at 147.)

Now, introducing rhetorical figures requires practice and should not be overdone. If done badly, they can be . . . well . . . done badly. As Garner himself says:

“Figures of speech are to be used only when they achieve the particular effect–a special emphasis or an aphoristic quality–that you require. Many of them are appropriate primarily in elevated writing . . . . If you were to pack your prose with them, without regard to what you were saying and why, you would achieve only an unintended humor. Experiment cautiously: The plainest possible style is far superior to one that is artificially decorated with figures of speech.” (Id. at 148.)

Here are four rhetorical figures with which most of us have at least a passing familiarity, even if not by name:

1. Metaphor. This is an “implicit comparison between two things of unlike nature that nevertheless have something in common. A metaphor says not that a thing is like something else, but that it is that something else.” Id.

Two examples:

“Juries are not leaves swayed by every breath.” – L. Hand, J., in US v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).

“A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.” – Denning, L.J., Seaford Court Estates Ltd v. Asher [1949] 2 K.B. 481, 489.

It has been observed that “a skillful writer with metaphors seldom commands them to appear. He collects visual and auditory impressions and waits for them to form into metaphors while he is writing. He draws them from his close knowledge, intimate experience. He does not calculate or manufacture them. ” Ken Macrorie, Telling Writing 207 (1970).

2. Irony. A personal favorite. I love irony. I also, unfortunately, seem to have very limited patience for people with no sense or appreciation for irony. Are they not the dullest knives? Of irony, Garner writes:

“The use of words whose literal and figurative senses are opposites; that is, the difference between what seems to be said and what is meant. The chief weapon of satirists, irony subverts the reader’s expectations. (Garner, at 153.)

A couple of examples:

“I cannot say that I know much about the law, having been far more interested in justice.” – William Temple, the former Archbishop of Canterbury, speaking at the Inns of Court, as quoted in Lord Denning’s The Road to Justice 1 (1955).

“The only thing about the appeals which we can commend is the hardihood in supposing that they could possibly succeed.” – L. Hand, J., in US v. Minneci, 142 F.2d 428, 429 (2d Cir. 1944).

3. Anastrophe. (Also known as hyperbaton.) “The inversion of the customary or logical order of words or phrases, especially for the sake of emphasis.” (Garner, at 157-58.) Here are three examples:

“Rules we must have.” – Jerome Frank, Courts on Trial 411 (1949).

“On the words you use, your client’s future may depend.” – Lord Denning, The Discipline of Law 5 (1979).

“Constitutional choices must be made; to all of us belongs the challenge of making them wisely.” – Laurence H. Tribe, Constitutional Choices vii (1985).

4. Alliteration.  Another personal favorite. Frankly, I probably overuse it. Alliteration is “[T]he noticeable or effective repetition of similar sounds, either in the vowels (assonance) or in the consonants (consonance).” (Garner, at 165.)

Here are a couple of good examples:

“The life of the law has not been logic; it has been experience.” – Oliver Wendell Holmes, The Common Law 5 (1881).

“A quarter century has wrought no revolution among the professional purveyors of pretentious poppycock . . .” Fred Rodell, Goodbye to Law Reviews–Revisited, 48 Va. L. Rev. 279, 286 (1962).

Should you attempt to incorporate alliteration, anastrophe, irony or metaphor into letters or briefs? That is more than a rhetorical question. The answer depends on whether you’re comfortable and confident that a particular figure works. Only use a figure if it seems to fit naturally. If you have to “shoe horn” it, it’s probably better left out.

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Give Your Brief Headings The Marquee Treatment

A colleague who recently passed the California Bar Examination hosted a group of us to a round of drinks and the talk turned to bar examination grading. Specifically, how little time the graders spent on each essay (I think it was a matter of seconds). Our group included a lawyer who had worked briefly as a tutor to recent (or not so recent) law school grads on how to pass the bar. I learned for the first time how much emphasis is placed by the graders on headings, or portions of exam answers that are underlined or set apart some other way. She explained that, because the graders spend such a minimal time on each essay, headings or other highlighted matter take on a special importance.

I’ve been told this is not so unlike the limited time and attention some judges and their clerks spend reading legal briefs, underscoring the importance of well-chosen and composed headings. I seem to recall hearing somewhere that some judges and clerks sometimes go no deeper in a brief than a review of the headings.

Obviously, then, headings can be particularly important in legal writing. I consulted legal writing guru Bryan Garner’s The Elements of Legal Style, and found that he offers three issues/rules to keep in mind when crafting headings and subheadings. Here’s what he says:

“1. Do not rely on headings to provide transitions. You still need to prepare the reader–perhaps with a transitional word (therefore) or sentence (That brings us to the final point).

2. Be sure that any headings you use convey a definite message to the reader. A vague or ambiguous heading defeats itself.

3. Shun generic headings, such as ‘Facts’ or ‘Background,’ ‘Analysis,’ and ‘Conclusion.’ These often falsely suggest that the facts are discrete from the analysis, or that the analysis is discrete from the conclusion. Unless you are writing in a medium that requires formulaic headings, such as the ‘Statement of Facts’ in a brief or student memorandum, such headings give the impression that the writing follows a formula. And you may even make it formulaic by failing to analyze what organization best suits your purposes. Make your headings serve your text, not vice versa.” (pp. 77-78)

“In addition,” Garner suggests, “make [headings] . . . uniformly brief.” Id. at 78. My girlfriend in law school worked as a legal secretary (in addition to her full-time law school case load). I recall asking her to show me some professionally written legal briefs from her firm. What struck me was both the brevity and informality of the headings, particularly in contrast to the formal headings we were being taught to write by our legal writing professors (some of whom, I’m thinking, had never actually filed a legal brief with a court). I was stunned by one real world opposition which featured a heading that merely said: “This Motion Is A Complete Waste Of Time.” While I don’t think any reader would find this heading compelling, it does have sense of immediacy–of getting to the point–that the lengthy, formal headings we learned to write in law school sorely lacked, but that most readers appreciate.

Perhaps when we penetrate to the farthest reaches of this era of Twittering Tweet-like communications, where brevity is not only prized, but required, there may come a time when 140 characters is all you get. Better make those headings count!

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Does Style Matter In Legal Writing?

When we write to a court or to opposing counsel our goal is typically to persuade. When we write to a client, an expert or to a colleague, our aim is primarily to convey information. Is there any room here for style? Is style something we should even bother with, considering many of us are on the clock and a client is paying for our time? After all, do we hire the cab that will take the most scenic route? Who’s going to hire a lawyer because they speak on paper with the eloquence of Shakespeare?

Thankfully for many of us who came to the profession with some interest or background in literature or writing, the answer is yes, style does matter in legal writing. In The Elements of Legal Style, writing guru Bryan Garner reminds us why. He says,

“Legal writers must recognize what other inhabitants of the literary world already know: A good style powerfully improves substance. Good legal style consists mostly in figuring out the substance precisely and accurately, then stating it clearly. Too many of us equate artful writing, or ‘style,’ with the warrior’s cumbersome headdress, pleasing to the eye but irrelevant (perhaps even a hindrance) to the conquest. Music provides the better analogy: Does anyone fail to recognize that a Beethoven symphony becomes a different piece when played by an ensemble of kazoos instead of a major symphony orchestra? The medium is the music. Why should we find it difficult to accept the parallel truth in writing?” (p.4)

In LawyeringJames Freund offers a different take why style should not be an afterthought. He writes,

“It’s not telling any tales out of school to observe that most writing on legal subjects by lawyers–the style, as contrasted with the substance–tends to be extremely dull. There is a pre-packaged, monochromatic quality to the prose that dulls the edges of even the most fascinating issues. It’s almost as if the author were seeking the Somber Seal of Approval, fearful that any injection of sprightliness or creativity into the writing will stamp him as a lightweight thinker or lacking in total dedication to a ponderous profession. And then too, most lawyers are so concerned with the substance of what they’re saying . . . that once having achieved precision, they give little or no thought to style. . . . Whatever merit total sobriety may  have in formal legal documents . . . it strikes me as altogether unnecessary in less formal (and formidable) writings such as letters or memos, where you are attempting to educate or persuade–particularly when your reader is not a lawyer. You may have succeeded in rendering your document clear and concise, but if it’s dry and monotonous the reader may experience difficulty keeping his mind on the subject at hand.” (pp.54-55)

While these may offer compelling arguments in favor of attention to style in legal writing, questions remain, including (1) what exactly does “style” mean in this context, and (2) can too much of it be a bad thing? Because this post was not intended to be book-length, I’ll turn back to Bryan Garner for some brief, but telling, responses. First, he writes this about “style,”

“What is style? We can hardly improve on Jonathan Swift’s formulation, ‘proper words in proper places.’ That focuses on the right level of detail, but it begs questions or propriety. What are proper words, and how do you know when they have been put in proper places?

In judging words and their placement, remember that the character of the writer determines the character of the prose. . . What you say and how you say it reveals your habits of mind. In trying to write your best, you may strive to proportion one part to another and to the whole, to cut out what is useless, to accent what matters most, and to preserve a uniform tone throughout.” (p.5)

Can style be overdone? Absolutely! I suspect most of us know it when we encounter it. A Shakespearean demand letter? A Dantesque jury instruction? Imagine an US District Court law clerk confronting a brief riddled with Faulkner’s poetic, but torturous sentences. While Garner acknowledges that tastes for “grandeur” in legal writing have evolved over time, he describes what is currently in vogue:

“[M]odern readers — even of law books — prefer the Attic style. We like what is plain; we grow impatient with what is fancy. Legal readers admire directness and scorn baroque curlicues.” (p.8)

Well, there’s a starting place. Consider style. Accent that which is important. Cut out what is useless. Strive for proportion. But, at all costs, guard against the baroque curlicue.

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A Period, And Then One Space Or Two? The Definitive Rule!

Ok, so I’m 46 years old and when I was young we had rotary telephones, vinyl records, rode on the backs of dinosaurs, etc. Therefore I wasn’t born knowing that we only put one space–not two–between the end of one sentence and the beginning of another. In fact, I will admit that, like most people of my . . . er . . . vintage, I was suspicious when I started to hearing or reading, I can’t remember which, that I was doing it all wrong.

It turns out that the single space rule is older than I am. According to the oracle (i.e., Wikipedia), the last known official US government document to specifically prescribe double spaces after concluding punctuation was a 1959 government style guide.

Lest you doubt or hate, the 2000 and 2008 editions of the Government Printing Office’s (GPO) Style Manual are unequivocal in their guidance regarding this convention: “A single justified word space will be used between sentences. This applies to all types of composition.” Modern Language Formatting Style (MLA) General Guidelines state: “Leave only one space after periods or other punctuation marks (unless otherwise instructed by your instructor).” There’s apparently also something called the Associated Press Style Book which is equally clear on the subject. And the Chicago Manual of Style. And Typography For Lawyers.

I’ll admit I’m struggling to overcome the sheer habit of double-spacing. I had to go back and fix several sentences in this post.

-Thanks to Dmitriy Kopelevich for setting me straight and providing the background materials.

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