April 28, 2008

Let's read an excerpt from Justice Scalia's book "Making Your Case: The Art of Persuading Judges."

Last night, on "60 Minutes," Justice Scalia talked about his new book — written with legal writing whiz Bryan Garner — "Making Your Case: Making Your Case: The Art of Persuading Judges." Now, the ABA Journal provides a nice, long excerpt.

The Journal also quotes me in the intro, saying I "constantly dearly" wish the other Justices would write as well as Scalia. "Constantly dearly" — oh, good Lord, I wonder what Bryan Garner thinks of that sort of writing. It sounds like I'm having a Harlequin romance with the pugnacious jurist. I just wrote "pugnacious jurist" as a language joke to try to make Bryan Garner laugh. Anyway, I had to dig deeply, industriously, to find the old post where I said "constantly dearly" in some fulsome plaudit to the scrappy jurisprudent. It was way back in May 2004, in the fifth month of the blog:
Slogging through Supreme Court opinions and imposing them on my students, I constantly dearly wish all the Justices would write like Scalia (or Jackson or Holmes, to whom Scalia is compared elsewhere in the article). Like most law review articles, the Justices' opinions are usually written in a characterless, "learned" tone. Does persuasion consist of boring your opponent into submission? If you were going to write ten (or twenty or forty) pages that thousands of students were going to meticuously study, shouldn't you take the trouble--the opportunity!--to write something engaging? Reading the opinions of the other Justices, I often suspect the point is to give everything a look of tedious, unexceptionable regularity to disguise all the seams and shortcomings.
I guess I could write a book aimed at judges — "Writing Your Case: The Art of Enlightening the People Who Ought to Believe You Deserve Your Vast Power." But Scalia and Garner are writing to the lawyers who must beseech those judges, and let's get to the excerpt:
In brief-writing, one feature of a good style trumps all others. Literary elegance, erudition, sophistication of expression—these and all other qualities must be sac­rificed if they detract from clarity....

[Shun] puffed-up, legalistic language. Make your points and ask for your relief in a blunt, straightforward manner....

The clearer your arguments, the harder it will be for your opponent to mischaracterize them. Put yourself in the shoes of a lawyer confronting an opposing brief that is almost incomprehensible. You struggle to figure out what it means—and so does the court. What an opportunity to characterize the opposing argument in a way that makes it weak!
This is great stuff. Writing a book like this, the co-authors had to make sure their own writing style was terrific.

It's a long excerpt, so go to the link and read the whole thing or, better, buy the book. I'll just pick out some highlights.

1. Now, we have a Scalia cite for the important point that it's just fine to begin a sentence with a conjunction:
There’s a myth abroad that you should never begin a sentence with a conjunction. But look at any species of reputable writing—whether it’s a good newspaper, journal, novel or nonfiction work—and you’re likely to find several sentences per page beginning with one of those little connectives. You can hardly achieve a flowing narrative or argument without them.
And Virginia Woolf begins a whole book with one.

2. Don't be boring! It's the loser's way to try to look legalistic.
Banish jargon, hackneyed expressions and needless Latin. By “jargon” we mean the words and phrases used almost exclusively by lawyers in place of plain-English words and phrases that express the same thought. Jargon adds nothing but a phony air of expertise. A nexus, for example, is nothing more or less than a link or a connection. And what is the instant case? Does it have anything to do with instant coffee? Alas, to tell the truth, it’s no different from this case or even here.
We readers of Scalia opinions already know he loathes the word "nexus."

3. Stop saying "fatally flawed," "flies in the face of," "painting with a broad brush," and all those other things that you imagine make you sound like a lawyer. They just make you sound like a hack. Don't say "beyond peradventure." Ha ha. I have been making fun of the use of "beyond peradventure" for a long time. (See my old post "It cannot be gainsaid" — which is aimed at judicial writing.)

4. They tell us to avoid Latin phrases like ceteris paribus, inter alia, mutatis mutandis and pari passu. And I was just about to cite Scalia opinions that use them when I was brought up short by the next 2 sentences: "Judges are permitted to show off in this fashion, but lawyers must not. And the judge who does not happen to know the obscure Latin phrase you have flaunted will think you a twit." So the judge is allowed to lord it over you in a way that you dare not lord it over him? Are we talking strategy now or good writing? I contend that the judge ought to talk straight and not be any more obscure than the material requires. The judge is wielding power and ought to feel compelled constantly (dearly!) to prove to us that he deserves it. With those Latin phrases, it's as if he's chortling ha, ha, I have the power. I wonder if the judicial exception was in the first draft. I'm picturing Scalia making additions to a passage composed by Garner.

Oh, even my highlights are going on too long for a blog post, mainly because the text is inspiring commentary — which is an excellent thing. So I'll stop here for now. More highlights with commentary later. Buy the book and read along with me.

8 comments:

rhhardin said...

Your usage is correct ; you're making a new verb dearly wish, and then modifying the unit verb with constantly.

It's sort of like splitting an infinitive, to dearly wish, which is deprecated incorrectly. It differs in meaning from dearly to wish and to wish dearly, though your critics won't acknowedge it.

Paul Zrimsek said...

This is a black day for Simon.

wgh said...

I bet Scalia has a dogeared Strunk and White on his shelf.

Simon said...

Paul - LMAO. Thanks for thinking of me. ;) Well, look, Scalia isn't the first person who's been influential on how I think about writing to be wrong about latin. Orwell was also very skeptical about latin.

If all Scalia & Garner mean is that you shouldn't use latin unnecessarily, then I readily embrace that point. It goes too far (as I have done from time to time, I will confess) to coin a latin phrase (but cf. Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting) (rendering "culture wars" as "kulturkampf"). To me, however, "unnecessary" implies the existence of an English alternative that is acceptably well-established (i.e. no neologisms) and attractive. Which, in turn, is to say that the English term or phrase must be well-established, as I just mentioned; must not displace a well-established traditional latin usage (acceptable though it may be in spoken usage, anyone who writes in a citation "Romer against Evans," or worse yet, "Romer a. Evans," should be taken out back and shot); and should be equally efficient and/or elegant. But substitutions rarely meet those criteria. As I noted here, and what ought to be a quest for clarity (as Scalia & Garner note, clarity is the touchstone of writing, particularly legal writing) is usually a fig leaf for that "lamentable and pretentious of modern trends, the 'war on latin,' wherein latin and other traditional terminology are ostentatiously ousted from the lexicon" in favor of "some rationalist's idea of what good modernist writing should look like." In short, one ought not go out of one's way to insert latin, but one ought not go out of one's way to avoid it, either. Although there are borderline cases (mutatis mutandis is one of them), a judge that would prefer "by even stronger reason" to a fortiori or "from the force of the term" to ex vi termini ought to be viewed with suspicion. Sorry, Frank.

Another consideration that I take into account is that, in addition to the foregoing, there's a harmonic aspect to words. Stringed instruments have harmonics above the fundamental pitch, and sometimes it's the same with words or phrases - they carry subtleties of meaning that accrete culturally (hence that Judge Easterbrook could describe dictionaries as "museum[s] of words" and "historical catalogue[s]" thereof. Frank Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol. 61, 67 (1994)). There's a richness - or at least subtleties - that can sometimes be lost in translation even when acceptable English alternatives exist and would be appropriate in most circumstances. Sometimes, one really does mean simply "or not"; but sometimes, one really does mean vel non. The latter is richer, more flexible and more freighted with import than the translation, and when used correctly - that is, when and where appropriately - is more effective.

I sum, while I don't insist on archaic forms, where there's no elegant English alternative to such, or where there is one but it's a horrific neologism, or where there's an otherwise acceptable English alternative but the flow and cadence of the sentence forecloses its use (that's why I'll sometimes use archaic English like whence, too), I don't think writers should go out of their way to reinvent the wheel.

That's my opinion... And, to paraphrase Scalia, it just so happens that it's the right one. :p

Roger Sweeny said...

I like "fatally flawed."

blake said...

That's as may be, Roger, but that flies in the face of Scalia's advice.

As for splitting infinitives, that admonishment is from that late 18th century era where (even more) uptight (than usual) grammaticists tried to impose Latin grammar upon English.

Same with ending a sentence with a preposition. A preposition is a perfectly good thing with which to end a sentence....

Paul Zrimsek said...

I mostly agree, Simon, even if vel non is still a bit much for me. But now that Capo Nostro has spoken, what's left for us mere mortals to say?

Simon said...

Paul said...
"[N]ow that Capo Nostro has spoken, what's left for us mere mortals to say?"

"I respectfully dissent"! ;)