Associate Supreme Court Justice Elena Kagan recently sat down with lawyer and lexicographer Bryan Garner to give advice on what it takes to be a good legal writer.
Her advice could apply to anyone who’s striving to be a better writer, legal or otherwise.
The key, Kagan explains, is understanding that legal writing and writing for a general audience aren’t so different. If you work in a technical field — like law — don’t write like you’re addressing a technical audience. In a recent interview with National Law Journal, Kagan implored law schools to teach better writing skills to their students.
“There’s not some special magic to good legal writing,” Kagan said. “To be a good legal writer, honestly, is to know the law, and to be a good writer.”
Kagan, who was appointed to the bench in 2010, is the fourth female Supreme Court justice. Her decorated resume also includes stints as a student at Harvard Law School, and later professor and dean there, and she drew many of her tips from her time at Harvard.
Be a good reader — don’t skim
The key to being a good writer is to be a good reader. Read carefully so you have a thorough understanding of the material.
“I don’t think I’ve learned the art of skimming. I really do start at the beginning of a brief and go through the end and read everything in between,” Kagan said.
Write so normal people can understand you
Supreme Court opinions often contain complicated legal theories and obscure facets of the judicial system. Kagan wants to make sure ordinary people can still read a Supreme Court ruling and understand it.
“A hundred years ago, [the Supreme Court justices] were speaking a very specialized, professional language,” Kagan said. “They didn’t really care whether that language was understood by anyone outside the case — even by other lawyers, let alone non-lawyers. When you pick it up, you have to translate a little bit. Even lawyers have to do that. I think now, we are very concerned about speaking to the American public. We want the American public to understand what we’re doing, and why.”
… But don’t dumb yourself down too much
If you’re writing about a complicated subject, you still need to make sure you get the subtleties across. It’s a tricky line to walk, but it helps to assume your readers are educated even if they’re not lawyers.
“What I try to do is write so that a non-lawyer could read it. But not any non-lawyer,” Kagan said. “I don’t want to dumb it down too much. And I don’t want to explain things that really don’t need to be explained. So I guess I have in mind the reader of the New Yorker, or something like that. I have in mind a reader, who has some education, or some intelligence, or whatever … I try to write so that people who are used to reading, even if not law, would be able to follow what I’m doing.”
In one recent case, Kimble v. Marvel Entertainment, Kagan dropped a bunch of Spider Man references in her opinion for the majority.
Stating that the court should exercise authority sparingly, Kagan quoted an early comic: “With great power there must also come — great responsibility.” Good writing doesn’t have to be dry even if its subject matter is important.
“There’s no rule against fun in Supreme Court decisions,” Kagan said. “And to the extent that anything was anything was inappropriate, or not respectful enough of the Court or its processes, one of my colleagues will let me know. And in that case, no one did.”
Explain your reasoning
There was a time where Supreme Court court opinions were much shorter; former associate justice William Rehnquist used to cut out the reasoning from his opinions and deliver just his decisions. Kagan finds that frustrating. It’s best to take every argument seriously and to communicate not just your conclusions, but how you came to them.
“Part of what we do here is reason about cases,” Kagan said. “And part of what we do is show the American public how we reason about cases. It’s not just ‘here’s the question, here’s the answer, and now we’re done.'”
Get feedback from people you trust
Like every other judge, Kagan has a back-and-forth with her law clerks, who often write first drafts of opinions. The draft she ends up with is “98%” her own, but it’s helpful to read the argument from somebody’s opinion, according to Kagan.
“I have a very long, extensive writing process,” Kagan said. “It actually starts for me when I get a draft of an opinion from a clerk. I tried doing opinions without a draft from a clerk, but I actually prefer — I’m not going to use anything the clerk writes — I actually prefer to see a draft from another person. It helps me start thinking about the case from an argument. It gives me a springboard, to think about a case, to see how another person writes it down.”
Garner’s full interview with Kagan is worth a watch. Check it out here.
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