Ross’s writing tips are the simply the best. And ever since reading the Roberts article, I’ve waited, sometimes impatiently, for the publication of his legal writing newsletters.
Ross agreed to an email interview, so here it is:
Q: First off, thanks for agreeing to the interview. We are excited to have you on The CockleBur. You talk a lot about style. Do you think there is a place for literary devices in legal briefs?
A: Absolutely, as long as the lawyer uses those devices to help clarify the issues and not to pontificate or to show off! Here are some good examples from famous advocates cited in my book: alliteration (“A transitive reading of ‘corruptly’ avoids this interpretive train wreck entirely.”); elision (“. . . the myriad signals and messages that daily underscore the notion of men as society’s active members, women as men’s quiescent companions”); rhetorical question (“Would the Commission have interpreted negative body language—crossed arms and a furrowed brow perhaps—to constitute a violation as well?”); and antithesis (“Plaintiff’s second version of his injury—‘his electoral voice [might be] lost to an ineligible candidate’—arises not from the probability that the AIP will lose the State’s general election, but rather from the possibility that John McCain could win.”).
Q: When asked about framing issues, Justice Scalia was quoted as saying: “Man, that’s everything. The rest is background music.” Do you agree that the framing of issues is the most important part of a legal brief?
A: Some of the greatest Supreme Court advocates, like Harvard’s Larry Tribe, are known to spend hours on a single-sentence issue or “question presented.” Here’s the challenge: in a sentence or so, you have to reduce a case to its essence, persuade the court from the get-go, and yet sound neutral and credible. Let me share a good example from the Chief Justice’s brief in Alaska v. EPA:
Whether the Ninth Circuit erred in upholding the EPA’s assertion of authority to second-guess a permitting decision made by the State of Alaska—which had been delegated permitting authority under the Clean Air Act—in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act and similar statutory programs.
Q: Speaking of Justice Scalia . . . Who is the better writer? Justice Scalia or the Chief Justice? And what are their main differences?
A: The Chief Justice’s opinions are superbly written, but they are more homogenized than what he wrote as an advocate (see above) or as a judge on the D.C. Circuit. He did have some fun this term with the meaning of “personally” in AT&T Mobility v. Conception, but he can’t be as witty as he was on the lower court, when he once questioned whether the Endangered Species Act protects a “a hapless toad, that, for reasons of its own, lives its entire life in California.”
Justice Scalia is of course a supremely gifted writer as well, but the barbs and attacks in his dissents have obscured his style and his message. So if forced to choose, I’d tip my hat to the Chief Justice.
Keep an eye on Justice Kagan. Her first opinion, in a bankruptcy case called Ransom v. FIA Card Services, sounded a lot like Scalia (who turned out to be the lone dissenter in that case). Kagan also conjured up some virtuoso hypotheticals in her dissent in the recent Arizona taxpayer standing case. I’d put her writing so far in the same class as Roberts’s and Scalia’s.
Q: There is a ton of legal scholarship and commentary these days on blogs. In some ways, blogs have taken the place of law reviews. Do you think the writing on blogs is better or worse than the writing found in law reviews?
A: It’s long been fashionable to trash the style of law reviews. As far back as 1936, Professor Fred Rodell wrote that “the average law review writer is peculiarly able to say nothing with an air of great importance.”
But today’s law reviews serve their intended purpose, and the best articles can sway a generation of scholars.
At the same time, the serious legal blogs probably make our profession second to none when it comes to thoughtful discourse on the Web. Even so, most of these blogs seem to be split between “prof” blogs for academics and “practitioner” blogs for everyone else. It would be nice to see more interplay between the two.
Q: Did you discover any strategic or writing patterns amongst the legal writers covered in Point Made that you didn’t share in the book?
A: Strategic patterns: I’d say that the best advocates are inclined to concede that their opponents have some valid points. They set up the litigation as a fair fight.
Writing patterns: What I notice in most of the motions and briefs I read is that the lawyers don’t appear to have any fun while writing—and it shows. I’m not saying that the briefs I quote from in my book are a barrel of laughs, but I did feel when I read most of them that one person is communicating with another in a conversation of sorts. It’s hard to articulate that sense, let alone teach people how to do it, but I tried to do so as best I could.
Q: When is the next Legal Writing Pro newsletter coming out? And what is your next big project?
A: I appreciate my loyal following, so I don’t want to irritate you all with too many newsletters! Or maybe that’s just how I rationalize my sloth? In any event, look for the next installment in early September.
I have a few projects in the works. My next book will be on how to write like the world’s best judges. Unlike the advocacy book, this one will have an international focus, meaning that I will be translating some groundbreaking opinions from the world’s most influential supreme courts. Speaking of judges, I have been doing more and more work with federal judges, something that I’ve enjoyed immensely.
I’ve also been refining an assessment that helps pinpoint and solve lawyers’ writing problems. And I am always thinking about new workshops for the law firms and agencies and bar associations that retain me.
Thank you, Shon, for giving me this great opportunity to interact with your readers!
 “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) (C.J. Roberts writing for the Court).