Ohio

Legal writing 101

Actually, an advanced course.  LawProse.org is a web site run by Bryan Garner and dedicated to the better legal writing, and on getting you to pay Bryan Garner money to tell you how to do better legal writing.  Nothing wrong with that.  One of the interesting features of the site, is the Educational Videos, which features short excerpts from interviews with a wide variety of judges, including Supreme Court Justices, telling you what they do and don’t like.

Some of it is fairly banal.  A recurring theme is that judges have to wade through a lot of briefs, so you should make sure yours stands out a bit.  How?  Make sure they’re not badly written.  Gee, that’s helpful.  Actually, Clarence Thomas comes up with a somewhat interesting take on this:  if he sees a 20-page brief, that’s the one he’s going to pick up, rather than the one that maxes out the Court’s limit of 50 pages.  And some of it is contradictory.  Scalia says don’t bother writing a summary of your argument:  “I mean, why would I read the summary if I’m going to read the brief? Can you tell me why I should read it?”  But Thomas says that a summary is essential, because it’s a preview, “like, what’s going to be on TV next week.”

But Garner’s also posted a section on the web site which contains the complete interviews with eight current Supreme Court Justices.  (Souter declined the invitation.)  I haven’t gone through it all, but it makes for some interesting listening, discussing not only the justices’ views on briefs, but their own legal writing experiences.

One thing I got a kick out of was Scalia’s comment about typos in briefs.  “My goodness, if you can’t even proofread your brief, how careful can I assume you are” about the legal citations?

I’m a little more forgiving about that sort of stuff, but on the other hand…  A year ago, I took over an appeal to the Supreme Court in a criminal case.  The assignments of error the other lawyer had put together for the brief in the court of appeals were as follows:

I. The sentencing criterea imposed by the State of Ohio through Revised Code 2929. as interpreted in State v. Foster 109 Ohio St.3d 1 violates the Sixth Ammendmant of the Constitution of the United States.

II. The trial court erred in imposing the maximum consecutive sentence allowed upon the appellant, violating the constitution of the Sate of Ohio and the United States of America.

III. The trial court erred in allowing bail money, provided by the wife of the appellant to be applied to fines levied, constiuting an unlawful taking of property in violation of the Constitution of the United states and the State of Ohio.

Frankly, if I’d been the judge, I probably would have put the brief down at that point, too.

Oh, and if you’re wondering, this wasn’t an assigned appeal.  The lawyer had gotten in the low-to-mid five figures for this masterpiece.

Full post as published by The Briefcase on March 14, 2008 (boomark / email).