Chief Justice John Roberts on the topic of writing

Chief Justice Roberts thank you very much for taking some time today talk about legal writing happy to be here I wanted to ask you first of all why should lawyers be fast idiots with their use of language well it's the language is the central tool of our trade you know when we're looking at a statute trying to figure out what it means we're relying on the language when we're construing the Constitution we're looking at at words those are the building blocks of the law and so if we're not fastidious as you put it with with language it dilutes the effectiveness and clarity of the law and so I think it's vitally important whether it's a lawyer arguing the case and trying to explain his position whether it's a legislator or writing a law whether it's a judge trying to construe it at every stage those lawyers have to be the more careful they are with their language I think the better job they're going to do and capturing in those words exactly what they want the law to do in persuading a judge how to interpret it and as a judge in giving a good clear explanation of what the law is do you think the profession could do better on that school yes and I think we all can do better you know we read hundreds thousands thousands of briefs in the course of the year at the Supreme Court and some are more effective than others and it's just a different experience when you pick up a well-written brief you kind of get a little bit swept along with the arc and and you can deal with it more clearly rather than trying to hack through it's almost like hacking through a jungle with a machete to try to get to the point you spend expend all your energy trying to figure out what the argument is as opposed to putting your arms around it to see anything if it works on some of the cases on which you grant cert are you still when you read the briefs having the Hat through with a machete well sure the quality of briefs varies greatly we get some excellent briefs we get a lot of very very good briefs and there are some where the the first thing you can tell and many of them is that the lawyer really hasn't spent a lot of time on it to be honest with you you can tell that if they've gone through a couple more drafts it would be more effective it would read better and for whatever reason they haven't devoted that energy to it well I tells you a lot right there about that lawyers devotion to his clients cause and that's very frustrating because you're obviously dealing with very important issues we depend heavily on the lawyers our chances of getting a case write improved to the extent for lawyers do a better job and you see something like bad writing the first thing you think is well if he didn't have enough time to spend writing it well how much time did he spend researching it how much time did you spend thinking out the the ramifications of his position you don't have a lot of confidence in the substance if the writing is bad do you find it interesting that here in Washington we have all these different mechanisms for moving cases and some people will have five moot courts before getting into argue before you and yet they probably don't subject their briefs the same kind of editorials group well some do and some don't but it's a very good point you know the oral argument is the tip of the iceberg the most visible part of the process but the briefs are more important I don't think anybody would dispute that and they should have as much time and energy devoted to them as the oral argument preparation I've been listening to some of your oral arguments recently and generally breathtakingly good what's it like being on the other side of the bench and it's easier first of all at least at the oral argument stage I enjoy the arguments very much I mean I always did when I was a lawyer but you know as a lawyer you've got to be prepared to answer a thousand questions you might get eighty you might get a hundred but you've got to be prepared to answer more than a thousand you know as a justice you just have to ask whatever you you know think might help you decide the case so it's a lot more relaxed of being on the asking side of the of the of the bench but you know they've always remember saying when I was a lawyer you hope to engage the court in some kind of a dialogue and a dialogue among equals so if it's going to be that both the judge and the lawyer have to vote at a sufficient amount of time to preparing for the argument you know as a lawyer you hope to be prepared for questions understand where they lead to have fought several moves ahead so that you can answer correctly rather than just sort of on the spur of the moment and as a judge or a justice you should have thought out why you need to know the answer to that question sometimes it comes up on the spur of the moment another justice asks a question and another thing occurs to you it's not like you have to have studied it in advance but you should know where you're going why are you asking that what do you hope to find out and so you do have to prepare as a judge as well it's a lot less nerve-wracking though because you can ask stupid questions it's a lot less harmful than giving stupid answers in society in general why does it matter how well judges write well judges the opinions are going to be used for lawyers for other judges to tell them what the law is it's an explanation of what the law is and just like a judge doesn't want to spend all his or her energy trying to figure out what the lawyers trying to say in a badly written written brief you don't want a trial judge to miss the point of an opinion or to not understand it because it was poorly written you certainly don't want lawyers if they're trying to advise clients on how to conform to the law the law is you want them to be able to look at an opinion and leave leave it with some understanding and not just more confusion and certainly for the future as well I mean we pick up the books in our chambers and you get a case from 1872 or whatever it is and you want to read it and understand what their view of the law was and what the precedent means and if it's poorly written you know sometimes you just kind of throw your hands up and look for something else that's not good you mentioned the late 19th century that was kind of the low point American judicial writing don't you think well you have good writers in every era and certainly that our profession has gone through periods same with contracts you can look at an old contract and it's filled with jargon and leaves it legalese and wear it whereas and heretofore and form you know and you just wonder why I didn't just if people didn't talk that way and why they felt compelled to shift into a different language when they're writing a contract it's the same with opinions there's a certain style that could be a little confusing but there are good writers back in that era just as there are just as there are today and bad ones then just as there are today as well who have been your most important teachers arriving well you know it's always the case the best teachers of writing are good writers who read and you kind of absorb it when you read them someone like a justice Jackson you need one of his opinions and it makes an impression on you not just the law but the Felicity of expression and the breadth of analogy and reference it's just very and at the same time it has a very plain spoken approach to it you don't have to be a lawyer to read one of justice Jackson's opinions and understand exactly what he's saying and that's very valuable certainly the the judges I clerked for Henry friendly was a brilliant writer and had a way of exposition that just revealed the thought and decision process if you ever pick up one of his opinions he walks you exactly through through how he reached the result said you know you begin with this whether it's the language and it raises this concern and you pick up this case and and he walks you through and it's a very revealing and very clear justice rehnquist for whom I flirt to some extent a very different writing style but a crisper diction to his language event that makes sense in the written word and yet the same clarity also taught me a great deal about there's kind of a beautiful symmetry and in Jackson's having had Rehnquist as a clerk and written post having had Roberts as a clerk DD there is this sort of lineage did you have the feeling that that then justice Rehnquist was passing on some things to you that he had learned from Jackson I hope I was attuned enough to pick up what he was trying to pass on but I think it's it is the case that law clerks tend to learn about a lot about being a lawyer from there they're judges or justices you know they're young student just right out of law school impressionable to some extent and you do pick up a lot I certainly picked up a lot from Rehnquist I hope I did anyway and I'm sure he did from Jackson as well what would you identify as the the periods in your life when you underwent sort of growth spurts as a writer oh gosh I it's kind of hard to say I think you develop a lot as a writer the more you read and so whenever I was having a lot of time to read I think I would have improved a good bit as a writer I read a lot and that's all I think the difference in high school in college and you know the interesting thing is I think people lose a lot of writing ability when they get to law school because you tend to read a lot of stuff that isn't that well written and you can to stop reading other stuff that is well rated because you don't have time you're you're focused on some badly written cases from whenever or some badly written laws first of all and you're not reading anything good so you tend to start writing not as not as well as you might have so you lost it and so to make sure they have time to refill things apart from the law throughout law school and the casebook method brilliant as it is could have some very bad consequences and what it does to people's writing with you well you know there are in in the law some brilliantly written important pennies that people read and it's an interesting thing I'm you can pick up Marbury vs. Madison extremely well-written you think oh my gosh it's you know 200 however many years old case it's going to be tough it's not it's good English and you know something a hundred years later you just can't understand what they're trying to say so you know I'm not a law professor but those who write the case books ought to spend some time making sure the opinions they put in are well-written to that'll help teach good writing in addition to the substantive law he's probably a little bit of fun to teach Socratic ly with things like Neuer versus math Braille pay difficult right but there again that you expend so much energy trying to figure out what they're trying to say that you can't deal with the legal concepts as much and I think that's a problem Chief Justice Rehnquist was a stickler about words was that he didn't like the word here the non word irregardless he could be a loser editor of memos or or drafts or briefs and it's good to know I mean as a lawyer you need to know your audience and if you know there's a word or a phrase or style of grammar that's going to annoy your reader you want to make sure you don't put it in what are the most annoying things to you when you read a brief you know I'm not I don't have any great fetishes about particular language it's more lack of clarity that bothers me I mean if you just sit there and read a sentence and just have to go back and read it again doos I think pacing is so important in whether you're a lawyer writing a brief or a judge reading it you want to take the judge you know by the hand and lead them along with some degree of drama to get them to you know when you're going to be making the major points have some degree of anticipation and if they're slogging through each sentence because it's just not really very clear you're not going to they're going to lose that and then it becomes a real chore as opposed to a pleasure you mentioned chief justice rehnquist is quite an editor he was also occasional editor of oral argument wasn't he would stop people if they were didn't have quite the right word or were misusing an expression yes have you is that your style as well or you know now you know not really it kind of depends on the again the pace of the argument and what's going out I'm not going to stop in the middle and say someone's used along the bit of grammar no but it you know it's like it's like these analogies are probably not very insightful and maybe a bit trite but it's like music if you're listening to music and somebody you know somebody hits the wrong note it kind of detracts from it and you hear it it's the same way they're if they're making a point and they just you notice it and if you notice that you're not noticing the argument they're noticing the words and that's unfortunate

Channel: courtpoint

Views: 116,256

Keywords: Law, Legal, lawyer, supreme, court, justice, roberts, lawsuit

Id: ZIjBzn7rbPE

Length: 14min 54sec (894 seconds)

Published: Tue Mar 11 2008