Set in Style

The May 2008 edition of the ABA Journal has this interview with Bryan Garner and Antonin Scalia discussing topics from Making Your Case: The Art of Persuading Judges.

Here’s some of the best advice the book has to offer (about writing briefs):

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.

Write normal English. Such as a demonstrative adjective (such action) can almost always be replaced with the good old normal English this or that. And hereinbefore with earlier. And pursuant to with under. The key is to avoid words that would cause people to look at you funny if you used them at a party. Pretend that you’re telling your story to some friends in your living room; that’s how you should tell it to the court.

Note that the second paragraph has a few incomplete sentences. An oversight? A hint? Who can say?

Brownstein Hyatt Farber Schreck — a firm that boasts “you can rest assured that you’re being represented by a team of seasoned attorneys with the knowledge, relationships and legal skills to help you mitigate even the most complex environmental risk” — says wood is a fossil fuel.

California recently enacted a landmark global warming law, Assembly Bill 32 (AB32), whose goals were to establish state-wide programs designed to combat greenhouse gases and promote the development and use of energy-efficient technologies. Carbon dioxide is the main focus of AB32. Carbon dioxide is produced by the burning of fossil fuels, such as coal, petroleum, natural gas, or wood, and is discharged primarily from exhaust pipes and industrial smokestacks. Because greenhouse gas emissions are directly related to the use of energy, measures designed to conserve energy and reduce greenhouse gas emissions are key, but surely not the entire picture.

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This is a classic example of why law firms (functioning as publishers) need editors. Having an editor review copy before it’s published is nothing less than the application of due diligence.

Note: without an editor, readers might be left with the impression that the firm’s expert attorneys think that most of the carbon dioxide in Earth’s atmosphere comes from exhaust pipes and industrial smokestacks.

In a sense, what Brownstein, et al. is doing with its publications is demonstrating to all (including prospective clients and adversaries) that it doesn’t apply due diligence to all it does, and that’s not good, especially since the firm claims (believe it or not) that due diligence is one of its specialties.

It’s like David v. Goliath. There’s a big manufacturer. It likes to throw its weight around. It sends a cease-and-desist letter to some Mom-and-Pop shop. It turns out that Pop is a lawyer, and he’s got a formidable sense of humor.

Read Pop’s response to Monster’s claim of patent infringement.

Yesterday, the House passed the Plain Language in Government Communications Act of 2008 by a vote of 376 to 1. The act requires government agencies to use plain language in “Government* documents intended for the public.” The act is also meant to “preserve and enhance the role of English.”

To comply, government agencies may rely on the Plain English Handbook, published by the Securities and Exchange Commission, or the Federal Plain Language Guidelines.

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*Curious it is that, in such a bill, government is set as Government.

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Related News:

This article (published today) describes the massive effort underway at the Veterans Affairs Department to rewrite regulations in plain language.

And this proposal from the SEC would require investment advisers to provide their clients with brochures written in plain English.

The Blog of Legal Times informs us that Antonin Scalia is going to be interviewed by Leslie Stahl on the 27 April episode of 60 Minutes. Seems as if the camera-shy justice is making an appearance to promote his upcoming book (co-authored by Bryan Garner) Making Your Case: The Art of Persuading Judges.

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Update: The Washington Post has this article about Scalia’s newfound lack of shyness. The the ABA Journal has this interview with Bryan Garner and Antonin Scalia.

Just in from the AP (announcing the 2008 Pulitzer Prize winners):

BIOGRAPHY: “Eden’s Outcasts: The Story of Louisa May Alcott and Her Father,” by John Matteson

Matteson said his 14-year-old daughter was an inspiration for his book, which is about a girl’s relationship with her father. “Not only did I understand parenting better after writing the book, but being a parent helped me to write the book,” Matteson said.

Matteson, who holds a doctorate in English from Columbia University and a law degree from Harvard, teaches literature and legal writing as an associate professor of English at John Jay College of Criminal Justice in New York City. He has practiced law in California and North Carolina.

Matteson said his daughter wants to become a writer and he couldn’t wait for her to get out of school to tell her the news.

Here’s the intro to the book.

There was some noise this week about a revision to an Arkansas law (9-11-102(b)(1)), passed last March, that — on its face — allowed children of any age to get a marriage license, just so long as they had their parents’ permission. The law contained the following:

In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.

What the author of the bill intended was a law prohibiting people younger than 18 from getting married in Arkansas, with an exception for pregnant girls. They could get married if their parents consented. Somehow (and no one seems to know how it happened) the phrase “who is pregnant” was changed to “who is not pregnant.”

(more…)

Kudos to Greg May (host of The California Blog of Appeal) for informing us of this award given to Justice Arthur Gilbert, “The California Court of Appeal’s poet laureate.”

The Georgetown News-Graphic has this interesting piece (titled “Pleaseth updateth thy language”) about lawyers clinging to the past: using outmoded, cryptic language, going bonkers with caps, emulating Shakespeare, etc.

Here’s an excerpt:

In many ways, we have truly modernized. But in some, we still have an antiquated system. And in no area is this more evident than our persistence in using indecipherable language simply because it’s the way Thurgood Marshall did, the way Oliver Wendell Holmes did, the way John Marshall did, the way John Jay did. Those men were all great legal minds, but they were not supposed to have set (and continue) a template for our legal language for all eternity.

The University of Chicago has announced that Joseph Williams – Professor Emeritus of English, winner of the Legal Writing Institutes’s Golden Pen Award, author of an acclaimed text on how to write with style, and the architect of U of C’s writing program — died of natural causes on 22 February.