In this edition, host Jonathan Amarilio and co-host Margaret Mendenhall Casey are joined by Judge Robert Bacharach of the U.S. Court of Appeals for the Tenth Circuit to discuss his recent book “Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word” and what advocates should consider when crafting persuasive arguments.
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Jonathan Amarilio: Hello everyone and welcome to CBA’s @theBar, podcast where we have unscripted conversations with our guests about legal news, topics, stories and whatever else strikes our fancy. I’m your host Jon Amarilio of Taft Law and joining me today as co-host is Maggie Mendenhall Casey of the City of Chicago’s Corporation Counsel’s office.
Jonathan Amarilio: Hi Maggie.
Maggie Mendenhall Casey: Hey Jon, how are you doing today?
Jonathan Amarilio: I am well, and you know, today’s topic Maggie, you know how you occasionally hear stars of stage and screen say that they do one production for the studio and then another production for themselves.
Maggie Mendenhall Casey: Yeah. Yes, I have heard that before.
Jonathan Amarilio: This is the latter for me. I love this topic. We are here today to nerd out a little bit, to nerd out a lot of bit maybe about legal writing or perhaps more expansively persuasive writing in general. And joining us today to discuss that topic and his new book aptly titled, ‘Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word’ is Judge Bob Bacharach of the United States Court of Appeals for the Tenth Circuit.
No less than the likes of Erwin Chemerinsky have described the book as magnificent and it’s hard to disagree, and not just because its author is a Judge.
Judge Bacharach has served as a Federal Appellate Court Judge since 2013, and before that served as a Federal Magistrate Judge. He has handled thousands of cases in his nearly 23 years on the Bench and plainly know something about what makes for a convincing argument. Let’s learn what that is.
Judge, thank you for joining us today.
Judge Robert E. Bacharach: Well, thank you and Maggie so much for having me.
Jonathan Amarilio: It’s a pleasure. Let’s start with a question that I know you must have put plenty of thought into before you ever picked up a pen to write this book. There’s no shortage of legal writing books out there, some more famous and others many excellent. What prompted you to write this one? What, what sets it apart?
Judge Robert E. Bacharach: Well, the reason that I set out to write the book was frankly to help myself take a deep dive and a fresh perspective into what makes for effective written communication. What I hope out of those hundreds or thousands of other wonderful legal writing books out there is a little bit of a different perspective.
What I wanted to do was to explore one of the ways that we often think about communication and that is through hearing oratory. There are some what you know, wonderful speakers FDR, Churchill, JFK. Martin Luther King Jr. that come to mind where we heard their magnificent words and it wasn’t just the magnificence of their delivery, but it was also, I think a great deal attributable to how they put together words in clauses.
We often think about our audience, but we’re all audiences for these magnificent speakers. So I wanted to see what was it about rhetoric and oratory that makes it so effective apart from the delivery. And also in the course of writing the book, Jon and Maggie, I frankly, discovered this field that I was totally unaware of called psycholinguistics where these cognitive psychologists study how the brain processes both oral and written language.
And again, the way we think about our audiences, it occurred to me that a lot of what we think about our audience is merely intuition and these people for almost a century have been conducting empirical studies on how we process punctuation, how we process particular fonts, how we process passive voice versus active voice, long sentences versus shorter clauses.
And it occurred to me that, maybe we can learn a lot and mine this field so that we can take a, maybe a more disciplined approach into how we think about our audiences.
Jonathan Amarilio: So your psycholinguistics helps you go back and kind of reverse engineered famous and effective speeches to learn what makes them so effective, right? What is it that you found, what were the big takeaways?
Judge Robert E. Bacharach: Well, one of the takeaways is with writing long sentences versus short sentences, most people in my generation were taught to keep your sentences short, 25 words, 20 words, and yet you know, there are some really effective legal writers, those judges, justices, advocates that write rather long sentences.
So I wanted to take a look at that. And what I found is that psycholinguist tell us that we process language and process written information not based on the length of the sentence, but based on chunks of information, familiar units, could be a clause or sound, a phrase.
But we process these very limited segments of information in our short-term memory, and what they tell us is that we process those familiar units of information one chunk at a time, and we aggregate those with adjacent chucks and where we continually evolve these into our short-term memories as larger and larger chunks of information and eventually part of it gets transferred to our long-term memory.
And so I again took a look at some oratory and I’ll give you an example. A letter from Birmingham Jail. Martin Luther King Jr. has one sentence in that magnificent letter that’s 305 words. 305 words for a single sentence. It would violate every rule of the book based on high, where I went to high school. He would have gotten an F in English, but the sentence is absolutely magnificent because what he does is he breaks up this rather this this extraordinary long sentence into these individual chunks of information that we can easily process according to cognitive psychologists.
And I’ll give you an example. This said it starts, “When you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim”. So that’s the first, this visual chunk that all of us can easily visualize, none of us have any trouble processing it. We store that in our short-term working memories. And then what we have after that is a semicolon, so he’s telling us take a sustained pause and I’m going to give you the second chunk of information, “When you have seen hate filled policemen curse, kick and even kill your black brothers and sisters”. Again force pause semicolon, and he goes through these 12 chunks of information in this one sentence. And so it’s amazingly easy to understand and yet it is 305 words.
When we look at different ways that we’re told I think a lot of intuitive instruction in the legal writing books, for example, keep your sentences short, I think we can draw on both examples from rhetoric and from cognitive psychology, maybe to take a little bit of a more nuanced approach and maybe not focus so much on keeping your sentences short as much as thinking about how we break up our sentences, our information into more discreet, more digestible chunks of information like King did.
Maggie Mendenhall Casey: So Judge, when you’re talking about taking from oration and looking at speeches and how that informs writing. I am a bit curious about what you think are distinguishing factors between a great orator, a great writer. I know you even talk about some of the techniques such as wrapping that you might use in both writing as well as or oration where you’re repeating what was previously said, but what are some of those distinctions?
Judge Robert E. Bacharach: Well, Maggie, I think that the most critical distinction is all of these magnificent orators are so clearly understood. You know, I just gave an example from letter from Birmingham Jail with Martin Luther King Jr. But if you look at some of JFK’s very famous speeches, if you look at Churchill and FDR speeches, these people are trying to persuade us to inspire us to act. But I think, you know, part of their brilliance as communicators was that they were not going to inspire us, they’re not going to motivate us to act unless we instantly recognize what they are telling us in real time.
And then if we translate into that into how we say write letters to clients or to write a brief for a judge or judges. If a judge or a client has to reread a pronoun, or reread a clause to figure out what it means, they’re doing exactly the opposite of what these brilliant orators did, where we didn’t have to play back the tape, we understood in real time exactly what they’re saying, what every pronoun had an antecedent for and the clarity I think is what is the common denominator among all of these quite different styles for all of these orators.
Jonathan Amarilio: I imagine when you were running through the first couple clauses of the letter from Birmingham Jail, it one of the things that struck me as you were describing it is you knew from the second clause on exactly what he was doing and what the pattern of the letter would be, right. You saw that he was going through essentially a what kind of like a rhetorical film reel of images. You knew he would continue to do that.
And then at some point, he would say, you know, when you’ve seen this what happens next, right, you knew he would get to that, that pivot point just from the first two clauses of that 305-word sentence. Is that predictability a positive or can it be a drawback, how do you see that?
Judge Robert E. Bacharach: Oh, it’s, to me it’s unquestionably a major strength. In that example that Jon, I think you’re spot on as we read each of these digestible chunks of information in King’s sentence. It’s imperative that we instantly understand what his point is, because it’s not going to be in that particular sentence until he’s already gone through over 290 words where he tells us what the point is.
Jonathan Amarilio: Right. And you know it’s coming.
Judge Robert E. Bacharach: But we know it. You know, when he ends this sentence and says, when you are forever fighting a degenerating sense of nobodiness, then you will understand why we find it difficult to wait. The reader, all of us will go, no kidding.
Jonathan Amarilio: Right.
Judge Robert E. Bacharach: He’s telling the public why you have difficulty understanding why we and myself, my followers are so impatient for racial justice, this is the reason. And you’re right, as we read each one of these little clauses, we instantly know, and it was so important for King I think to be able to get his message across by making sure that we understood it as we are reading it.
Otherwise, we’re just scratching our head and saying, you know, okay, maybe we’ll get to the point eventually. And I think in legal writing a lot of times we forget this, it’s so important to do what we can by creating context before we plunge into details to make sure that the chunks of information are instantly recognizable, that the reader can extract the point as they are reading them. And I think that’s really sort of the — perhaps the most important part of persuasion is the ability for the reader and listener to instantly understand what we’re trying to communicate.
Maggie Mendenhall Casey: And just a process question Judge. So you have quotes from Martin Luther King as well as Stephen King, and I’m curious as to what inform your decision in terms of deciding, this is a quote that I want to include or you know what, this quote doesn’t make the list, this speech doesn’t make the list?
Judge Robert E. Bacharach: Well, great question Maggie. What I am really was trying to do was to take communicators or list novelist that all of us or most of us will instantly give a fair degree of credibility to.
I mean, Stephen King was not only a wonderful novelist, but he wrote books and many articles about how to write and, you know, he was really a master of how to put language together and try to take oralist, you know like Martin Luther King Jr. and FDR, JFK that have us a certain degree of credibility built in, because I think most of us just intuitively regard some of these orators in a class by themselves.
And so, I really wanted to draw from those individuals because frankly of the credibility that they sort of inherently have.
Jonathan Amarilio: So Judge, that makes me think of something that I do sometimes and I’ve never — I’m not terribly introspective as human being, I’ve never really quite understood why I do it, but I know it works and it’s this. When I’m having difficulty sometimes getting going on a brief, it’s not exactly writer’s block, but it’s just — I can’t find that rhythm. I will pick up a book I have of like Churchill’s speeches or have one of Lincoln’s speeches, I have one of JFK’s speeches and I just thumb through it, read a few of them and I find myself kind of falling into a rhythm reading the words, you know, the flow of the pros, it gets my mind going, it gets the pen flowing. Is that part of what you’re talking about or is that something else?
Judge Robert E. Bacharach: You know, I think, I do think it maybe is a little bit of a different strategy in illegal writing. I think it is very effective. I have my own sort of variation from that as distancing ourselves from the current task, but you know, sometimes, when we were working so hard to get the mechanics right on our initial draft, and so we’re it’s just, like pulling teeth to get the next sentence out. And we read some of these sentences that just flow so easily, you know, I do think it’s, is a little bit of taking a mental break of distancing ourselves from the project at hand, but I did think that that’s — you know the technique that you are describing is very, very effective.
Maggie Mendenhall Casey: Judge, I have a bit of a disclosure to make. As I was reading the book, there were a couple of suggestions you made that I had a gut or instinctual reaction like, no, that’s wrong. That’s not what I was taught but it was good to hear that from a judge to help me move on from some of those things. One in particular, that no one could say this besides the Judge or the final decision maker on this is using a litigant’s name versus using their party designation. I am guilty of, I am a defense attorney for the City of Chicago of calling my client City and calling plaintiff, plaintiff, but you said that judges prefer and it’s clearer to hear somebody referred to by their actual name. Is that correct and if so, can you let us know why?
Judge Robert E. Bacharach: Sure and Maggie, I will say that I don’t pretend that I know sort of among judges in general, what their preferences are. The reason I do think that using names is – well there is not a lot of names is just again the focus on clarity. Let’s say we have a court term and we’re going to hear in the course of three or four days, maybe 18, 24 cases. And so we’ve read appellant and appellee or frankly even the city, you know, we may have a day where we happen to have nothing but qualified immunity cases, where a plaintiff has sued individual officer along with the municipality or a county.
So sometimes, just the specificity of the name will just be easier for us to remember. And, you know, when I was in practice and it’s been a long time since I’ve been in legal practice, but what I did was whenever I would refer to my client, it would be by name, and it would always be generic discreet and you know, the Big Ben, you know City or something —
Jonathan Amarilio: So you are humanizing your client, dehumanizing the others out, yeah.
Judge Robert E. Bacharach: Right. And you know I have really frankly haven’t seen the science on this, but I have kind of disbelieve that because I just think that judges are really trying to do what’s legally correct. And in order to help a judge understand sort of cogency, the logic of premises and your argument, I just think it’s so important to try to make however we refer to parties in a way that’s just the most easily understandable and memorable for the judges, and that’s just the way my brain works. You know, I will remember names more readily than I will certainly the appellant or the appellee, but sometimes even the plaintiff and the defendant, particularly, if there’s — it becomes very difficult than there’s cross claims and counterclaims, but that’s a little bit of a unique situation.
Jonathan Amarilio: And with that piece of Marshall-esque wisdom, we should take our first break, we’ll be right back.
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Jonathan Amarilio: And we are back. So Judge, Maggie’s last question I think got my mind racing on some practical questions I have, because we have you in the hot seat, we are the lawyers, we never get to ask you questions, now we get to ask you questions. I want to take advantage of that a little bit, turn the tables and ask you some specifics.
One thing that lawyers shouldn’t do but really often do is make their Statement of Facts sections in a brief really argumentative. That’s bad. It gives the other side a lot of openings to attack your credibility, it annoys judges.
But it’s always occurred to me or I don’t know about always, but, you know, in the better part of years of my career that, that doesn’t mean that a Statement of Facts can’t be persuasive without being argumentative, right. What makes a Statement of Facts fair, accurate but persuasive without being argumentative? How does a lawyer do that?
Judge Robert E. Bacharach: Great question, Jon. The most important aspect I think for a Statement of Facts is that when a judge reads the Statement of Facts, he or she understands how those facts are going to fit in to your argument. And so, it could be the most argumentative, well-created, well-crafted statement of facts, but if I don’t understand how those facts are going to fit into the premises of your legal argument, it will be totally lost on me.
And so I think that’s important to create the context of particularly of your legal argument and how those facts will fit into your argument before you plunge into those facts.
I do think you’re absolutely right, Jon, that if you are going to say a summary judgment, you’re arguing as a defendant in it. Take Maggie’s situation, your City arguing for summary judgment, say your Municipal liability in a Section 1983 case and you are then continuing to rely on your own version of the evidence in the Statement of Facts. The judge will intuitively discount probably much, or maybe even all of it because of course on summary judgment you are to give the evidence in the light most favorable to the nonmovant.
Jonathan Amarilio: Right.
Judge Robert E. Bacharach: And so, those are I think just little examples that you really do want to make it as indisputable as possible. Otherwise, the opposing party is going to come back and say, you know, this is — their Statement of Facts is the reason that you should not grant summary judgment because the whole argument is predicated on their own version of the evidence rather than the nonmovant’s version of the evidence.
So I do think you want to make it as non-argumentative, as indisputable, unchallengeable as you possibly can. And the last thing I would say about the Statement of Facts is excise everything that does not materially affect your legal argument.
Again, taking my own briefs as an example when I was in practice of what not to do, you know what I tried to do was to if my Statement of Facts is to prominently underscore of what a great person my client is or if it was a company, how way, the world could not exist without my client, they have done so much for the world. They should be rewarded.
And now I realized all that effort was completely lost on the judges, they don’t care who is good and bad and whether the company is good or bad company, what they want is something that’s going to be helpful to what they were appointed to do or elected to do, and that is to decide what is the legally correct decision in that case. So if you excise all the dates that are not material, it’s not a statute of limitations issue and you just excise all the extraneous facts then the judge is really forced to focus, to crystallize, to remember those facts that are really going to have an impact on his or her decision.
Maggie Mendenhall Casey: Judge, I appreciate hearing your transition and thinking from being a litigator to being a judge. And I think you even talked about that at the start of your book in your preface when you were thinking about, this is a type of writing that I do when I’m arguing and this is a type of writing that I do as an Arbiter of fact, and I’m curious about how did you transition from having the Hat on, donning the hat of the litigator, taking that off and then putting on the cap of the judge, the Arbiter of fact, how were you able to make that transition?
Judge Robert E. Bacharach: You know, the passage of time helps. When you become a judge, your thinking all of a sudden goes from trying to present the best argument on behalf of the particular constituency to trying to decide, okay what is legally, correct. I may hate this result, I may think it is a terribly unjust result, a horrible result, but what is legally compelled by the statute, by the precedence. And with the passage of time I think it either gets a lot more difficult or a lot easier. For me frankly with the passage of time, it became far easier.
And in part Maggie. I think that’s because when I started and I was a Magistrate Judge as Jon said for almost 14 years. I was so ingrained, particularly in the cases that I typically concentrated on in my practice, that I would try so hard to say if I was doing primarily defense work in a particular area to say, okay, well now I’ve got a different head on, I can’t have these biases that I’ve had.
And so once you start thinking about that, it’s sort of like being an umpire calling balls and strikes and thinking, okay, well on your last pitch, you know, you call the ball when it was a strike. And so I need to correct that, you know, you just can’t be thinking that way. And just with the passage of time I think it’s become quite easier.
Jonathan Amarilio: So Judge, something you said just a little bit ago, really struck a chord with me, and you’re talking about lawyers writing for the judges to make the judges job easier in reaching the right decision. And you know, that’s something that I always stressed with for example, the associates in our firm when I’m working with them on a brief is although I phrase a little differently. I say write your brief for the clerks less of the judges, because you want them to be able to pick up your brief and use it essentially as a guide for writing the decision, you know, try to structure it the way they would structure it. Be 100% honest and accurate in your depiction of the facts like you said, but also in your characterizations of the law, right. Don’t, don’t hedge, take bad cases on directly so they know that if they’re agreeing with you, they know how to do the same and they can rely on your characterizations of those briefs or those cases rather.
Jonathan Amarilio: Is that, when you’re reading a brief, do you find many advocates doing that structuring their briefs the way you would structure a decision or do you find that you have to reorganize everything and start from scratch?
Judge Robert E. Bacharach: You know, I don’t. It’s great question, Jon. I haven’t really thought a whole lot about whether the sequence of the argument is something that I typically need to restructure. I would say probably the answer is, I probably do reorganize, probably all of my judicial opinions, but I do think that the advocates that do what you’re suggesting does enhance their persuasiveness so much.
And the example that you gave is just perfect and that is a case that appears to go the other way. You know, you have two approaches that you can take, one is to pretend it doesn’t exist, hope the judge miss that in the other side’s brief, or frankly, even if the other side overlooks it, to hope that the judge doesn’t figure it out. Well, that’s very, very unlikely.
So if the judge doesn’t have the benefit of your trying to reconcile that with the ultimate argument or distinguishing in it some way, you’re really giving up something that is going to be so critical to trying to persuade the judge to adopt your position. So I think, I think your strategy is very, very effective, ignoring it is really not a good option.
But I do think that it’s sometimes just impossible to know how a judge is going to want to sequence, to organize the progression of his or her explanation for the decision, but still if you know, you’re a different person, and so you won’t be able — you may not even know who’s on your panel of course, but even at a district court level, where you know who the district judge is, it’s going to be difficult really to be able to project how that judge is going to want to structure his or her opinion, but trying to structure it in a logical way that you think will make it easy for the judge, again in real-time to follow it, to understand why you’re talking about roman numeral three after one and two, but before four and five, why you’ve organized it the way you did, I think is really helpful to the judge in trying to persuade the judge to adopt your position.
Maggie Mendenhall Casey: Judge, I’m going to ask you a bit of a topical question. In these past few weeks it’s kind of seem like it’s one of those rare times where certainly the whole profession if not the whole country’s eyes are focused on confirmation hearings. So I just be curious, if you would be willing to share a little bit about what your hearing process was like, with the prep was like?
Judge Robert E. Bacharach: Sure Maggie. So, I will just say this. I’m a lifelong Democrat. I live in Oklahoma. There are I think about five democrats in the State of Oklahoma, all of them have the last name Bacharach, yeah.
Maggie Mendenhall Casey: All your family, right.
Judge Robert E. Bacharach: All of the family, you know, it’s pretty much yeah, so nobody else. We had two Republican Senators, we had all Republican Representatives. When I decided that I wanted to have this position, I have never participated in politics, democratic politics, and I really didn’t have any political connections. But, so I — I will tell you I am not necessarily you know proud of this but nobody called me and said Bob Bacharach you would be a wonderful circuit judge, you need to go for this.
Bob Bacharach, said, okay, I would like you to consider me. So I really did try to get the position and what I found out later was Senator Coburn, who has now passed away, was one of my two senators. He was a member of the Senate Judiciary Committee that gave him a great deal of sway and influence over the selection. My politics couldn’t be more different than Senator Coburn’s. But what he decided and I did not know how President Obama got my name. I found out after I was nominated, the White House eventually told me after I was nominated that Dr. Coburn had given President Obama my name, which stunned me again because I didn’t know Dr. Coburn and really didn’t agree with any of these political positions. But one —
Jonathan Amarilio: But if he had to put up a democrat, there’s only five in the State. I mean, it’s a pretty short list, right?
Judge Robert E. Bacharach: Exactly, it’s either my sisters.
Jonathan Amarilio: Right.
Judge Robert E. Bacharach: Or my brother and you know it’s –
Jonathan Amarilio: Are they lawyers?
Judge Robert E. Bacharach: Well one was a lawyer so I didn’t think of my sister.
Jonathan Amarilio: Okay.
Judge Robert E. Bacharach: So that was good. But it ended up. It was not controversial. Nobody voted against me. So I was really lucky. I was nominated about a little over a year before the end of President Obama’s first term and whatever you call it, you know, some people call it the Joe Biden rule, some people call it the Strom Thurmond rule, you know, call it whoever you want, it stalled out. Senator Reid file a Motion for Cloture in the close of President Obama’s first term. I guess, I have the distinction of being the vote against cloture that ended up, ended all of the confirmations for President Obama’s first line of circuit nominees at the end of his first term.
And when he was re-elected, he did re-nominate me and, you know, we went through I think shortly after that. So it was a pretty — I mean, it was a very, it took a long time, it was I don’t know three or four years before I was eventually confirmed, but it was I think relatively speaking, you know a smooth process.
Jonathan Amarilio: So back to briefing, although that curveball is fun Maggie. One of the topics I’ve seen develop so much over the last decade Judge is lawyers and judges talking about the topography of briefs, because more and more people are reading briefs on screens rather than paper now and how that affects our absorption of what’s on the page or the screen I suppose. What is the science, tell us about that, about how we should be structuring, presenting things on the computer screen rather than on the printed page?
Judge Robert E. Bacharach: I don’t purport to be an expert on typography, there’s people that like Matthew Butterick primarily that really devoted so much time to studying it. One of the things that people that I do respect like Butterick tell us is that, that some of the old wisdom is more pronounced now with us really more digitally and that is creating as much white space as you can, not having lengthy paragraphs. More bulleted or numerical lists that create more white space because particularly when we’re reading so much on a computer screen or a tablet where you have a smaller visual universe, it’s just becomes very difficult when you just really don’t have any visual break.
And so I think some of that I think is good advice when we are reading on paper but particularly good advice as far as creating more visual white space on the page, in the secretes increasing concentration of reading information digitally.
Maggie Mendenhall Casey: You talk about a number of rhetorical and writing devices in the book, and I’m very curious about what your thought process is, when to use different devices. Even as I was sending out emails today I was keeping your book in mind, trying to change some things up and I started thinking, well, when do I use a long sentence, when should I use a short sentence, is a semicolon appropriate here or should I use a period. So when do you make those decisions of how you want to deploy different devices?
Judge Robert E. Bacharach: You know, Maggie, I think one of the things for example, if you are say even writing a letter to a client, or in a brief, there’s going to be a lot of what you have to say. We talked earlier about the Statement of Facts. Well, usually there’s not going to be anything that’s going to be just terribly monumental in terms of impact in the Statement of Facts, but there are going to be some points in your argument that you really do want to sink in, and if you decide that you’re going to use some maybe one-word sentences or three or four words sentences, that really can’t help but jar the reader and focus the reader on just those two or three words. I think those are sort of the points that you want to think, okay, how can I frame this point in a way that will set it apart from all of the other sentences.
If I really want the judge, let’s say, an argument on behalf of the City, to realize that there is no policy or custom this claim for say excessive force is the first time that the municipality is ever been subjected to a suit for that. You know a really important point for your side. I think, then you maybe want to use, maybe the only short sentence in the Brief, or if you do want to, we talked about the example from Martin Luther King Jr. as far as having sort of a dramatic build up to your final point, keeping in mind, Jon’s observation, which is so good that the reader knows as we’re reading it. But the point is until you get to the climax at the end.
But if you think of some of these rhetorical devices as things that it not going to emphasize every, you know, in every point, but the points that you want to emphasize, and frankly sometimes it’s a matter of removing focus too.
And I’ll give you an example. John Roberts wrote a — I’m not a first name basis for the Chief Justice, when he was in private practice, he wrote a wonderful Amicus Brief. I think it’s in a case called United States versus Smith, where he was, it was an amicus that was contesting the validity under the Commerce Clause of the statute that were criminalized the use of destructive devices, and the proponent in his argument was someone who had been convicted of arson for destroying a building. And he has one passage in this Amicus Brief where he has 13 sentences in a row and curiously, the only one of these 13 sentences that is framed in the passive voice is the building was destroyed.
You know, Joe Smith, destroyed the building. He obviously, he wasn’t hiding the ball but it wasn’t a particularly terrific fact for him. And so, I can’t imagine that it was just an accident that he decided to downplay the actor by using passive voice for the only time in this 13-sentence sequence. So, sometimes it’s a matter of deescalating or deemphasizing and sometimes it’s a matter of trying to underscore what you really want, the point that you really want to drive home.
Jonathan Amarilio: Let’s go to oral argument really quickly. I know that’s outside the bounds of your book, but you finish the Brief. You’ve heard probably thousands of them at this point. You finished a brief, you’re walking up to that Podium, you don’t want to just recite what’s in your brief because you’re going to put the judges to sleep then if they stay awake, you’re going to be annoying them. What is a good strategy for oral argument? What do you want to accomplish at an oral argument as an advocate?
Judge Robert E. Bacharach: There is only one goal of oral argument and that is answering the judge’s questions. And, when I was in private practice, there was a local judge that used to say, when I would start and I’m sure I wasn’t the only one, he would always start with saying, well, don’t tell me what’s in your brief because I’ve already read your brief and I used to think, you know, if I thought it was a good point, I would put it in my brief.
But pretty soon the judges will at least in our court will start asking a lot of questions and it’s difficult when you are nervous and it’s hard not to be nervous, you know, a lot rides on your cases and you have so little time, if you had an hour and a half, that would relieve a little bit of the strain, but when you’ve got 15 minutes or another Courts even less time, it’s really nerve-wracking and you don’t want to waste those precious moments, but the only purpose of oral argument is to answer the judge’s questions.
You know, we are human beings, we’re going to ask dumb questions from time to time, but it’s not on purpose, it’s because, we are as fallible as any other human being, we may miss the point, we may miss remember the point and it’s hard not to be frustrated when you get a question that you think is a boneheaded question. But this is your opportunity not to say judge, that’s just a really stupid question, how did you ever get to be a judge. But to diplomatically inform the judge maybe of the premise that the judge is using is just factually incorrect, or what the error is in the judge’s premise behind the question.
But just answering those questions, just listening, you don’t have to be the most eloquent person in the room. Usually the most effective advocates in oral argument are not the most elegant speakers, but the judges are asking questions because they want your help in probing what the legally correct outcome is, because that’s their job is to decide.
What is the analysis, what’s the outcome that’s legally correct and hopefully that’s the only reason that a judge will ever ask questions of an advocate.
Jonathan Amarilio: And those, those really are in my experience the best oral advocates I’ve seen, they’re engaging in a conversation with the court, they’re not presenting to the court. They get up there and they may say, they may have a little speech to begin with, but then they could obviously if they’re the appellee they start immediately answering the questions that were asked of the appellant, which is a very effective tool. But if they’re the appellant, they can just stop talking for a minute and say, I welcome the court’s questions and that gets the conversation going.
Judge Robert E. Bacharach: Absolutely. Absolutely. And it’s – sometimes that I’ll speak for myself, it’s rude to interrupt people. Sometimes one of us just in a — the three of us may inadvertently talk over one another, and we’re all just embarrassed when we accidentally talk over.
So when judges have to ask their questions by interrupting people, sometimes I’ll sit there, a little bit sheepish about interrupting somebody. So it’s wonderful, when an advocate really they’ve completed what they had to say in seven minutes and they’ll just say, that’s really all I have to present. I would be glad to entertain your questions. In that way, if we do have questions, we don’t feel bad about it about interrupting this poor person. So I think it’s really effective.
Sometimes there’s just a tendency, it’s a human nature, you get 15 minutes, I’m going to talk for 15 minutes, whether I have anything to say to justify 15 minutes or not.
Jonathan Amarilio: So last question before we need to take a break, what would you tell lawyers about how to become a better writer other than picking up and reading your book and absorbing every word of it? What would you tell them in a few sentences?
Judge Robert E. Bacharach: Read everything you can about, about legal writing. There’s a number of wonderful books about legal writing. Ross Guberman is just a wonderful instructor, Bryan Garner has written a number of wonderful books. There’s a lot to be gained from all of the legal writing books.
Number two, humility. It’s the only reason that anybody gets better at what we do. In interviewing guest on a podcast or becoming a judge or becoming or being a lawyer is, if we think we have reached the pinnacle and we are perfect, the perfect judge, one thing we do know is I will not be the perfect judge, know that anyway I am never going to be the perfect judge but trying to get better at what we do. I’m 62, I’m almost 63, if I’m not a better legal writer next week that I am this week, I have failed as a legal writer. Hopefully, next year I’ll be a better legal writer than I am now. Frankly, that was my principal motivation for writing the book. It wasn’t to help you or Maggie, it was to help me become a better legal writer.
And I think that that is just critical is to have the humility that all of us want to get better as a legal writer because all of us and I’m exhibit A, have room to improve. So I think those are the critical ingredients.
Jonathan Amarilio: That’s a perfect place for us to take a break. We’ll be right back with Stranger than Legal Fiction.
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Jonathan Amarilio: And we’re back with stranger than legal fiction. Our audience knows the rules, they are pretty simple. Maggie and I have done some research. We found one law that is real and on the book somewhere, but probably shouldn’t be for a variety of reasons. We’ve made another one up and we’re going to quiz each other and the Judge to see who can distinguish strange legal fact from fiction.
Judge, are you ready?
Judge Robert E. Bacharach: I’m ready, I think.
Jonathan Amarilio: Maggie, are you ready?
Maggie Mendenhall Casey: I’m ready, and you got this Judge.
Jonathan Amarilio: All right, Maggie, why don’t you take us away?
Maggie Mendenhall Casey: Sure. So I am going to default to my prosecutorial history and the two statutes that I have are in the State of Illinois there’s a statute that criminalizes spitting on another person. And oh, it looks like the Judge was taking notes. In the State of Illinois, there is a statute that criminalizes transmitting HIV to another person. Which one is fact and which one is fiction?
Judge Robert E. Bacharach: Maggie, I am going to opine that the – the real statute criminalizes spitting on another person.
Maggie Mendenhall Casey: And what’s your guess, Jon?
Jonathan Amarilio: I agree that’s battery. And I’m also pretty sure I saw a headline that was talking about the repeal of the HIV law recently.
Maggie Mendenhall Casey: Well, I could not stump you two. You guys are correct. As Jonathan said, I’m surprised that a fancy appellate lawyer knew that, spitting on someone —
Jonathan Amarilio: What? Well, well, well, what does that mean?
Maggie Mendenhall Casey: I thought might be a little — a bit too low brow for you, but yes, a spitting on somebody is a battery and in 2021 Governor Pritzker decriminalized the transmission of HIV because it was disincentivizing people from getting tested and knowing their status. So both you guys got it right.
Jonathan Amarilio: Well, thank you for the fancy lawyer jive, that’s probably the nicest backhanded compliment I’ve got.
All right, round two. Option one, Federal Law makes it a crime to intentionally sell onion rings resembling normal onion rings, but actually made from diced onions without an explicit label explaining that the onion ring is not in fact a natural onion ring. Long sentence, lots of commas.
Maggie Mendenhall Casey: You’re trying to trip us up.
Jonathan Amarilio: Option number two, maybe, maybe the structure is intentional. Option number two, Federal Law makes it a crime to play softball in a National Park after the hour of 10 p.m. local time.
Maggie, I saw one of your eyebrows shoot up.
Maggie Mendenhall Casey: I guess number two is a real statute.
Jonathan Amarilio: Why?
Maggie Mendenhall Casey: Just because of the timing and also because it sounds like it has something to do with a permit, like why that it would be preventing people from being in the park that late.
Jonathan Amarilio: Judge, what do you think?
Judge Robert E. Bacharach: I think what number one is the real statute in my rationale is it is the most bizarre thing I’ve ever heard, it’s crazy enough to make it into the real statutes.
Jonathan Amarilio: 21 CFR 102.39 part of the FDA’s Regulations on food for human consumption, says that, onion rings in particular, nothing about French fries, onion rings in particular must be a natural ring and if they’re not — if they’re comminuted, I had to look that word up, it just means diced, they must be expressly labeled as such on the packaging. Now you cross-reference that with 21 USC §333(d) addressing among other things, penalties for misbranded food and depending on the circumstances admittedly you could end up with a Federal crime, onion rings.
Judge Robert E. Bacharach: I feel so good about myself, Jon. We had two for two.
Jonathan Amarilio: Well, you know, I’m sure President Obama is listening and he knows that he made the right thing.
Judge Robert E. Bacharach: He’s probably quite worried about me since I did think both of those, yeah.
Maggie Mendenhall Casey: He’s proud that his nominee knows onion ring laws.
Jonathan Amarilio: I mean it’s huge. The ever-growing part of the law. Judge, thank you so much for joining us today. This was an educational and interesting time for me and Maggie I know and our audience will agree.
Judge Robert E. Bacharach: Well, thank you and Maggie so much. I thoroughly enjoyed it and I have learned about two very important statutes.
Jonathan Amarilio: I also want to thank my co-host Maggie Mendenhall Casey, our Executive Producer Jen Byrne, Adam Lockwood on sound and everyone at the Legal Talk Network family.
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