Introduction
John Roberts is widely regarded as one of the great legal writers in the country. His “crisp writing,” “painstaking research,” and “rigorous logic” — along with his twenty-five victories at the Supreme Court — led Roberts’s peers to view him with “palpable awe” and to call him a “brilliant writer,” “the best of the bar,” and “perhaps the best advocate of the generation.” In the first case that he argued at the Court, Roberts earned a unanimous victory, but the Court overruled the case (unanimously again) several years later; commentators suggested that the Justices had been “lured further than they wanted to go” by Roberts’s advocacy.
And, since joining the Supreme Court as Chief Justice, he has been called “the best writer on the Court” and a “dazzling judicial talent.”So what advice does he give to lawyers who want to write better briefs and motions? He offers a single tip: “The only good way to learn about writing is to read good writing.”
Roberts is hardly alone. Other judges tell lawyers to “read any type of good writing to become a better writer” and emphasize that “if you read well-written work, then writing well becomes second nature.” A top Supreme Court litigator observes that “the only way” to turn young attorneys into “effective legal writers is to immerse them in as much outstanding legal writing as possible.” And Associate Justice Anthony Kennedy admits that he has chastised his law clerks, telling them “you can’t write anything good because you’ve never read anything good.”
Many writers in many fields recognize the relationship between reading and writing. Among them are writing expert William Zinsser (“Bach and Picasso didn’t spring full-blown as Bach and Picasso; they needed models. This is especially true of writing.”); Stephen King (“If you don’t have time to read, you don’t have the time (or the tools) to write.”); J.K.
Rowling (telling aspiring novelists to “read as much as you possibly can... nothing will help you as much as reading”); and even President Obama (noting that reading taught him “how to write, but also how to be and how to think”). Countless other great judges, lawyers, professors, writers, and journalists offer the same advice. If you Google the phrase “reading is the only way to learn how to write,” you’ll retrieve almost half a million results. And if you Google “reading is the best way to learn to write,” you’ll get even more hits. We write what we read.So here’s the premise of this book: the best way to become a great advocate is to read and absorb great advocacy. You can certainly read genres other than law. In fact, you should. But consuming great written advocacy will help you to produce great written advocacy.
This book therefore pulls together examples of stellar legal writing. These examples are great. But not perfect. Some will seem too aggressive to you. Fine. Some will seem too meek. Fine. Others will seem too wordy, or too formal, or too playful, or too bogged down by citations, or too dependent on policy, or too laced with rhetoric. Fine, fine, fine. I even point out some shortcomings myself. But the examples reflect excellent (and often astounding) advocacy about a variety of subjects demonstrating a variety of styles and techniques. And I include so many examples precisely so that you can draw on an array of options to cultivate a style that suits you. That said, good advocacy tends to reside within certain boundaries, so I warn you when an example approaches the limits of how lawyers should write. Many of the best lawyers in the country are represented, and these examples collectively show you the best of what American lawyers produce on behalf of their clients. The sum is even greater than the parts.
The book seeks to act as an antidote to all of the dreadful things you’ve been reading since you began law school — whether that entails days or decades.
As one judge observes, law schools “teach students to write like lawyers by asking them to read old cases by dead judges who learned to write by copying older, deader judges.” And few practicing lawyers are exposed consistently to good legal writing, causing legal pundits like Fred Rodell to quip that “there are two things wrong with almost all legal writing. One is its style. The other is its content.” Bad writing wages a steady, clandestine war on your ability to write well. “Writing style is not consciously learned,” explains one linguistics expert, “but is largely absorbed, or subconsciously learned, from reading.” Chief Justice Roberts echoes this view, observing that reading good prose improves one’s writing because you “kind of absorb it.”More precisely, reading good and absorbing writing will eventually make you a better writer. But advice helps the medicine act faster. This book therefore annotates the examples that it reprints and offers countless tips to help you extract more value from each motion and brief.
Enough people have asked how I selected examples that I should explain my approach. I began by asking many of the best lawyers I know for their favorite motions and briefs. Then I asked these lawyers to nominate lawyers whom they admire and asked those nominees for the filings that made them proudest. Next, I reviewed legal blogs for exciting cases, watched the dockets of prominent courts, and tracked down the filings of lawyers who received acclaim in legal periodicals. Then I contacted numerous judges, legal writing professors, legal historians, and law clerks for suggestions. I also spent many, many hours looking at random motions and briefs on Westlaw based on key words that seemed promising. I wound up with approximately 12,000 motions and briefs, almost all of which I discarded summarily — too dry, too complicated, too average, or too old. The survivors (roughly 1,000 contenders) were impressive, and my team of research assistants and I discussed and trimmed them. We eventually rendered a manageable number of short examples, which are long enough to let you get into the flow of the document but short enough to prevent narcolepsy. They come from interesting, important, or notorious cases. And they also serve as vehicles to discuss a variety of points about advocacy.
To quote one of my favorite writing experts again, William Zinsser urges his readers to “find the best writers in the fields that interest you.... Don’t worry that by imitating them you’ll lose your own voice and your own identity. Soon enough you’ll shed those skins and become who you are supposed to become.”
So study this book’s examples, but also just soak in them. Soon enough you’ll become the advocate that you’re supposed to become. And, through that process, you will write with greater skill, joy, and authenticity. Advocacy will no longer be a grind or a mystery. It will be your art.