Legal Commentary

Howard?s very interesting post from a couple days ago spurred me to think more about the style of legal writing more generally. I suspect I?m not alone in thinking that most legal writing, however smart and insightful it might be is ? well, rather dry. That?s not to say the subject matter is necessarily dull, and if you?re interested in what you?re reading, it may engage you regardless of tone and style. On the other hand, if you?re reading a paper or an opinion because you have to, it can seem like a real chore, and I think this is in large part because the standard tone of legal writing tends to be ruthlessly expository?or less charitably, as arid as the Sahara. (And this is certainly something of which I have been guilty, as I often realize when going back over my own work.)

So does this mean humor is the way to vivify what can be a moribund style of writing, in opinions, or briefs, or articles? For a couple of reasons, I am skeptical. For one thing, judges may be able to get away with it because they?re often the final word on any given subject, but lawyers writing briefs and academics writing papers can?t take that chance, because there?s every chance that the judge or colleague whose evaluation is crucial to their success will find the humor inappropriate, and take a dim view of the work. (Especially true given the risk-averse breed that law folks are.)

There?s another reason it may not be a good idea, as some commenters in Howard?s thread gestured at. There?s something invariably demeaning about having an authority crack wise while also rejecting or challenging your position. So even if that overly long complaint really is frivolous, to set it aside with a joke means not only that you?ve lost, but that you haven?t even merited being taken as seriously as other litigants. I experienced a variation on this during this past year, when I found that students liked my sense of humor okay when I was making fun of the litigants in a case or, better, of myself (easy targets are always appealing). By contrast, any wisecrack made when I was answering a student?s question tended to meet with a chilly reception. Even though I never made a joke at a particular student?s expense, the idea that I was being even a little facetious gave some students the (mis)impression that I wasn?t taking their inquiry seriously. So perhaps there are contexts in which humor, however humane and well-meaning, just doesn?t work (e.g., ?Your death penalty appeal merits only rejection/Go get in line for your lethal injection.?).

But the final, and in my mind the most compelling, reason to avoid humor in legal settings is that it?s usually just awful. One familiar form of legal humor isn?t really humor at all, but more a form of self-identification. Putting a Death Cab lyric (or Star Trek reference or Lebowski quote) into the footnote of your latest article on Hamdan is usually a stretch, and is less funny than merely a way to signal to your audience that you?re a hipster (or Trekkie, or Lebowski fan). As for the rest?the opinions written as Dr. Seuss rhymes or what have you?they generally seem to me more corny than actually funny. To use an Office analogy, they?re more in the vein of Michael Scott than Jim Halpert. It may be because in most legal writing there?s no room for the kind of twisted ironic sensibility that makes humor work. Really good humor has to be surprising and weird and not terribly serious, while law is, at its core, a pretty serious endeavor. The reasoning is often challenging, and a lot hangs in the balance (for lawyers and judges, though perhaps not for academics), so briefs and opinions and articles have to be crystal-clear first and foremost, and the best way to do that is to be expository and nothing more. Plus, the plain truth is that humor is not the gift of most law folks, just as most poets would likely not pass the bar and most comedians would struggle to write a passable villanelle.

And yet this is all unhelpful in thinking about the problem of legal writing?s lack of zazz. (Or am I wrong in thinking this? Is there zazz there that I just don?t see? Perhaps others are sufficiently entranced by their love for law that the love itself is zazz enough for them.) To be fair, some writers manage to persuade but do so with grace and style. I invariably find Carol Rose?s writing a delight to read, and Kozinski?s opinions are undoubtedly full of life (regardless of whether one agrees with him). What these authors share seems to be a willingness to deviate a bit from the traditional strictures of legal writing (admittedly a scary prospect for a pre-tenure academic, or a lawyer composing a brief for a yet-to-be-named panel of judges) as well as a willingness to infuse their work with something of their personal style (rather than blindly imitating the expository style that sucks most legal writers in like a tractor beam). This approach takes some courage and extra effort, but then again, as the man says, no guts, no glory.