When you read opinions, and you were distracted by the writing quality, which opinions jumped out to you as especially well written?
Part of not knowing anything about the law when you go to law school is that you don’t know the names of any judges. And to be totally blunt, I probably knew even less than the usual person who stumbles into law school. I didn’t know, for example, that Justice Scalia was famous for his writing, let alone who Justice Scalia even was. It’s more like I would notice patterns that I found noteworthy. The one that I remember very distinctly is that judges, and even students in my legal writing class, would start sentences with “further” in a way I’d never seen before. It struck me as odd and clunky. Decades later, this is still one of my main crusades: to get people to stop starting random sentences that simply add onto a previous point with “Further.” [laughs]
One advantage of having a hardcore literary background is that, even though I didn’t know anything about the law, I was able to understand which terms were legal terms. Some words and phrases were normal; then you had this middle ground of words and phrases that weren’t legal, but were still peppering all the opinions I read.
Chief Justice Roberts has said that “the best teachers of writing are good writers whom you read, and you kind of absorb [their techniques] when you read them.” In that sense, who inspired your writing style?
Even in graduate school, I always prized very clear, direct, straightforward academic writing. And I noticed, not just in the humanities but in the sciences and social sciences as well, that the truly influential academics — the ones that commanded the public’s attention, like Stephen Jay Gould — were able to adopt that sort of direct, clear, economical style. So I was inspired by that going into law school.
And then again, I told you that I appreciated well written narrative fiction. In law school itself, I latched on pretty quickly to Justice Scalia’s style once I figured out that he was someone of note. Also, maybe because they taught at Chicago while I was there, I admired the writing of Judge Easterbrook and Judge Posner. So I had them to go by. And then, when I was a summer associate and when I had other positions, there were lawyers I learned a lot from as well. But I wouldn’t say I came out of law school with a specific person or people in mind to emulate.
I did go to school at the Sorbonne for a while, which has a much stricter and somewhat less satisfying approach to literature than we have in the United States. And that’s one of the things you would do there — you would have to actually imitate, not just a writer’s style in general, like Proust, but a single paragraph, and then try to reproduce the structure and the feel and even the rhythm using different words. But I didn’t have anyone like that. Which is funny, because I first became known in the field for focusing on Chief Justice Roberts’ writing style.
But you don’t try to imitate his style. You point out parts of his writing that people may want to imitate for themselves.
I actually have, for my own purposes, tried to imitate the style of someone like Justice Kagan or Chief Justice Roberts or Paul Clement. I don’t necessarily recommend that other people do; I’m not sure that’s a good use of their time. But I have done the things that one does, like type it up — you may have heard that advice. You take something like a Hemingway novel and you type it up first, word for word, until you start to get the feel. Your brain and your mind merge, and you feel like you’re writing like Hemingway. So I have done that, but I don’t think it’s nearly as helpful as what I do try to teach, which is breaking things down into specific concrete techniques and patterns that you can internalize. Because it’s not realistic or possible to truly imitate somebody else’s style word for word.
It’s quite hard to imitate them, too. It takes time to replicate Justice Kagan’s conversational style.
There’s a great interview Justice Kagan did at Harvard Law School with the new dean where she uses that very word you just used — “conversational” — and she contrasts that with “informal.” She talks about how hard she feels she works to get to that sweet spot, where writing is conversational but not informal. So I guess it’s reassuring to know that even someone who’s as gifted as she is has to work at it.
Do you think that a somewhat anguished writing process is necessary to produce good writing?
I have a very unpopular view on that. The right answer is supposed to be “yes,” but I just haven’t found that to be true and I don’t want to lie. So it isn’t really true for me, personally. I don’t believe in suffering. When I write my books, I certainly procrastinate like anyone else. But when I’m actually writing, I don’t find it painful or miserable. I don’t necessarily believe that everything requires twenty rewrites, and that every sentence has to be checked and reborn. Again, maybe my experience is unusual or my advice is unrealistic, but I don’t endorse the prevailing view that unless you’re suffering, and unless you’re rewriting everything and reconsidering everything, something’s wrong. I just haven’t found that to be the case. Obviously I can’t speak for Justice Kagan and her process, but I can’t imagine that she’s suffering over every character and syllable and word and phrase and sentence. Once you get what’s often called a voice, which is already a term I’m a little bit leery of, and you stick to that approach and you hone that approach, writing really shouldn’t be that painful.
But again, I’ve noticed that Appellate Twitter loves this idea: that everything takes ten times as long as it’s supposed to, and you’re supposed to suffer, and it’s okay if you have to rewrite everything. I think it does make a lot of people feel better, but I also wonder if the corollary is that if you enjoy writing and you don’t struggle over everything, that you must suck. And I just don’t think that’s the case.
I wonder if people feel like they’re supposed to be anguished. So if you open up a Word document, and you already have it in your head that everything’s going to be hard and time-consuming and everything you write is going to be revisited, I wonder if it becomes a self-fulfilling prophecy for some people. I don’t know.
When you open up a Word doc, what’s the first thing you do? How do you organize your writing?
I hate to say that I do what I teach, because we never truly practice what we preach – and I’m no exception. But I at least try to do what I teach, which is not treating something as an intimidating amorphous challenge, but really breaking it down. First, what is the number one most important point I want to get across to the reader? Obviously this is different if you’re writing a book or magazine article, as opposed to a brief or a motion. But that’s always my first step. If I only wrote one sentence, and that one sentence would remain in the reader’s mind, what would it be? It’s challenging in a good way to settle on a single sentence, but once you figure it out, everything else is easier.
Then you go from that to “Now I have one goalpost. I now want to make sure that I can encourage the reader to adopt that point.” So I’ll break it down to three more points to support my idea. Then I type those up. If it’s a brief, you have your heading and the three most important paragraph openers of your section. And then you go back to those three and you ask, “How many logical steps along the way until we get there?” If there are two, three, four internal steps, you type those out. That’s a little bit pat-sounding, and I’m probably not being realistic, but that’s what I’ve done when I’ve coached partners or federal judges who are great writers with huge process or efficiency issues. Almost overnight, they cut their time by two-thirds.
That reminds me of what you said in either “Point Made” or “Point Taken.” You mentioned that Laurence Tribe might spend two hours working on the framing of his first sentence, or Scalia would work on one main question. Afterwards, their writing fell into place pretty easily.
That’s a great and somewhat dramatic example of what I’m saying, because something like an issue statement is so hard to get just right. And you sort of know when you have done so. But that work pays off, because the effort it takes to truly encapsulate an issue is going to help you later on. And yet that’s not how most people write. What most people do nowadays, wherever they are, is they open up a document and they just start typing random things. And then they get lost and overwhelmed.
When you wrote about framing in “Point Made,” one of your examples was the Chief Justice’s brief in Alaska v. EPA. I understand that you’ve studied this brief quite a bit. What have you learned?
I’ve learned so many things, and in some ways, it’s responsible for expanding my reach career-wise. Honestly, I hate to overhype things, but it all comes back to that one brief. One big thing I learned was a little bit controversial, which is the idea that sometimes you really do need to include facts that aren’t legally relevant – they can help the reader see a complete narrative that would be disjointed otherwise. Or they seem like unrelated facts, but they actually end up sounding legal themes that someone like Roberts will return to later.
An example in that brief would be the way he talks about the regulated mine, and the dog — it was an Irish Setter — that would greet the miners. The dog reference seems to people who are a little rigid in their approach, I think, to be superfluous or gratuitous. But he’s making the point that the state and local officials know things like, “This is a mine that people really value, that employs people in this sparsely populated area of Alaska.” The image of the Irish Setter meeting the miners suddenly turns it from a polluting, abstract mine into something with a warmer association. That was a hugely important technique that I learned.
Probably the last thing I’ll mention is the unbelievable, pristine approach he has to words and sentences. Everything is short and crisp and concise, with apt transitions. A lot of lawyers use convoluted subject matter like the Clean Air Act as a crutch, an excuse for our style, when it’s actually entirely possible to marry the two.
Is that the same brief that talks about “best available technology”?
Exactly. There’s this horrible lingo, Best Available Control Technology, known as the BACT standard. And he has this beautiful passage in there about the word “best.” You know, listen, he didn’t win the case, which is important to note. And I was of course fully aware of that at all times. But he took what is objectively a very difficult case and got at least three votes, which is a miracle in itself.