Wednesday, July 11, 2012

Write to Persuade, Write to Entertain

        As many readers likely heard, last year the renowned legal writing expert Brian Garner published the 180 page transcript of his interviews with all nine Supreme Court justices in the legal writing journal Scribes.  In a nuthsell, Mr. Garner's interviews explore various aspects about appellate advocacy that every lawyer should know before representing a client before the Court, or before any other appellate tribunal for that matter.  The justice's complaints are at once familiar - Justice Ginsburg: Lawyers somehow can’t give up the extra space so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief - and at times reflect a common-sense, practical approach to brief writing that is both refreshing, and, well, surprising to hear from those who inhabit the seemingly rarefied, cloistered world of the Supreme Court.  Even a judge adjudicating the smallest controversies can appreciate Justice Roberts' statement that "[the facts must relate] a good story. Every lawsuit is a story. I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together — that’s a story. And you’ve got to tell a good story. Believe it or not, no matter how dry it is, something’s going on that got you to this point, and you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments."

        Just as the paperback fiction writer is writing to entertain the casual beach reader, the legal writer is writing to persuade a judge or a group of judges to reach a particular result.  In other words, every writer has an audience, and, here, some of the most learned judges who bear witness to some of the most impressive advocacy lament that, even today, they read far too many briefs that are heavy on long, turgid expositions of the law and light on brevity and human drama.  Read the transcripts.  Digest your audience's lessons. 

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