Legal Writing that Moves Gavels

Episode Notes

Transcript

Advertiser: Legal writing would do well simply to emulate what one reason in a really well-edited newspaper. It’s simple, it’s precise, it’s readable.

 

And that’s the hardest part to teach, is teaching people to look at their own writing as if they were strangers. To see their own writing as seen by other people. If you can learn that skill, you can become an excellent writer.

 

Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

 

Bob Ambrogi: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi coming to you from Boston, Massachusetts where I write a blog called Lawsites.

 

Craig Williams: And this is Craig Williams coming to you from sunny, Southern California. I write a legal blog called May it Please the Court.

 

Bob Ambrogi: Before we introduce today’s topic, let me take a moment to thank our sponsor, Clio. Clio is the online practice management platform for lawyers. You can find out more about Clio at www.GoClio.com.

 

Craig Williams: Bob, we’re going to be taking a different tact on today’s show. We spotted a video interview done by Bryan Garner who is the editor and chief of Black’s Law Dictionary with Supreme Court Justice Elena Kagan. During their interview, Justice Kagan discussed the importance of writing, especially for young lawyers, and how it may not be given the attention that it needs to be in law schools today.

 

Bob Ambrogi: So today we’re going to talk more teaching, writing to law students and young lawyers and the writing skills that young lawyers need. And to help us do that, we have two esteemed guests with us today. First off, let me welcome a returning guest to the program, Judge Alex Kozinski, who sits on the bench of the United States Court of Appeals for The Ninth Circuit where he has served since his appointment on November 7th 1985 by President Ronald Reagan. Prior to going to the Ninth Circuit, Judge Kozinski had been Chief Judge of the U.S. Court of Federal Claims and earlier in his career was special counsel to the US Merit Systems Protection Board, Assistant Counsel in the office of the counsel to President Reagan and a law clerk for both Justice Warren Berger on the Supreme Court and for Judge Anthony Kennedy when Judge Kennedy was on the Ninth Circuit. So welcome, Alex Kozinski, to Lawyer 2 Lawyer.

 

Judge Alex Kozinski: Good to be back!

 

Craig Williams: Well, it’s good to have you back. And Bob, in addition, we would like to welcome for the first time Judge Richard Kopf, who sits on the U.S. District Court for the District of Nebraska where he has been since his nomination by President George H.W. Bush and confirmation by the Senate in 1992. Since that time, he has been a member of the Committee on Codes of Conduct, the Judicial Conference of the United States and the Chief Judge for the District of Nebraska. Judge Kopf is also known for his authorship of the blog “Hercules and the Umpire,” which we might talk to him about in the context of legal writing. Welcome to the show, Judge Kopf.

 

Judge Richard Kopf: Thank you.

 

Bob Ambrogi: Justice Kagan, in her interview with Bryan Garner, said that she thinks that American law schools – including even those in the top tier – need to think in a deep way about how to help their students become better writers. I’d like to start off this interview by asking both of you to size it up from where you sit. What is your opinion of the quality of legal writing that you’re seeing coming out of law schools today among younger lawyers and how has it changed over the course of your careers whether for better or for worse? Judge Kozinski, let’s start with you.

 

Judge Alex Kozinski: It varies. I get very few writers who I thought were really excellent writers right out of the box. But they’re smart and they learn fast. Going to law school I think tends to stilt one’s writing. You read all those publications and many of them are sort of badly edited, not really good reading. And I think law students get the idea that that’s how writing is supposed to be. I also think that people come out of law school nowadays, one has to have good writing, doing a lot of reading, and I think over the past few years I think I’ve noticed the decrease in the amount of reading.

 

Bob Ambrogi: Judge Kopf, what about you? From where you sit, as a trial judge, what have you seen? What’s your perspective on the quality of the writing that you’re seeing coming out of law school and among young lawyers?

 

Judge Richard Kopf: Someone said that legal writing is to writing as military music is to music, and I think that’s largely true. When Justice Scalia was given the American Society of Legal Writers Lifetime Achievement Award, he said that he didn’t believe there was such a thing as legal writing. He thought there was only writing. And I think that’s particularly responsive to the point that Judge Kozinski has made. I think legal writing – if you want to set that off as a category – would do well simply to emulate what maybe one reads and a really well-edited newspaper. It’s simple, it’s precise, it’s readable, and so that’s my initial thought.

 

Craig Williams: Judge Kozinski, what do you find as the most annoying aspects of the writing that you see in the briefs that come in front of you? There’s a famous quip about a judge ordering lawyers to file their briefs in crayons and couldn’t get along. Do you find that that’s a common thing?

 

Judge Alex Kozinski: Well that particular judge is no longer on the bench. But I don’t think it’s as bad as all that. I think lawyers are busy and they tend to view brief writing as one of those things that can be put off and put off. And so they send in briefs that are less polished and less edited than they should be. And I think the deeper you staff a case, if you have a big law firm with lots of lawyers on the case, you can afford to go through a number of drafts and polish and cut your brief and edit it down to where it should be to avoid problematic matters. I think a lot of lawyers just don’t have the cases that can be staffed that deeply. So you have one lawyer working on the case, it could be a popular defender, it could be a loan criminal partitioner, it could be a loan immigration lawyer. And it’s very hard to write a very good, polished piece of work without help. I don’t do it, I consider myself a reasonably good writer, but I have lots of help. I have lots of law clerks who look at my work and I have the time to self edit and I have the time to edit their work and vice versa. I think a lot of lawyers, if they simply had more time, or if they had bigger, better paying clients, would write a better brief; but not every client can afford the best brief. So I don’t think it’s necessarily a failing of the lawyers. I think sometimes writing an excellent brief isn’t economically feasible. We live with that, that’s part of what we do. With the clients you better serve, the better brief, yes, but it’s just like everything else. If you can’t afford a law firm with six people staffing a case – and very few people can do that – you’re going to have to get something that’s less than perfect. But we work on the briefs as a starting point for the cases and we do our own research and we second guess and we take account of that.

 

Bob Ambrogi: On the topic of briefs, Judge Kopf, when you were writing your blog, you did a post on your blog in which you praised an article by the California US District Judge Andrew Guilford, kind of urged lawyers to rethink the way they use headings in their brief and to maybe even rethink the structure in briefs. Maybe even suggesting it’s time to drop roman numerals in their briefs. Is there a function to this sort of rigid structure of briefs? Is it time for lawyers or courts to rethink the way briefs are written and presented to make them more readable, more accessible to people who aren’t lawyers or to the general public?

 

Judge Richard Kopf: Well, two things. Number one, I think Andy’s suggestion just made sense. But beyond that, it leads to the district court level, as Judge Kozinski alluded. Lawyers are under pressure, and unless they have large staffs, and particularly at the district court level, they’re turning out briefs fairly rapidly. So rather than worrying about headings and subheadings and that sort of thing, let’s take a motion for summary judgement. It feels out the facts out for me in some reasonable fashion, and give me the citation to the record where you find it and give me a short argument about why I ought to grant for summary judgement. That’s about what I expect. I agree with Judge Kozinski, we don’t take those briefs, we do our own research. And we can do our own research. We can spend as much time as we reasonably need. What we’re looking for is what the lawyer is really concerned about. And so rather than form, I would urge – at least at the district court level – that the lawyers concentrate on simplicity and directness. Tell me what the facts are, give me the cite to the record, make your legal argument, and come to an end.

 

Craig Williams: The short version of what I’ve heard before from people who suggest what to do is tell me in the very first sentence why you’re here and why you’re entitled to the relief you’re asking for.

 

Judge Richard Kopf: Yeah, and it’s surprising to me that what a journalist would say, don’t bury the lead. The lead gets buried in virtually every brief I read. This is a motion for summary judgement. Well, okay. This is a motion through summary judgement, limited to the issue of qualified immunity, that helps a little bit more. And the more you refine that first sentence or first couple of sentences, the more you’re likely to catch the attention of one of my two career law clerks and ultimately me.

 

Bob Ambrogi: Unfortunately, simplicity and clarity in writing is not necessarily an easy skill to come by. Judge Kozinski, I wonder; part of Justice Kagan’s interview was talking about the difficulty of teaching this to law students, teaching good writing to law students. Do you have any advice for law schools who are trying to improve the writing skills of their students as to how they can do that?

 

Judge Alex Kozinski: Well, I have advice for Justice Kagan, she should just hire more of my law clerks. Because that’s what I do. No, I’m serious, this is what I do, that’s why they’re here. I spend a lot of time teaching them how to write.

 

Bob Ambrogi: But this is something that purveys the profession. It’s not just the law clerks that we’re worried about here but writing skills that lawyers of all levels and wherever their practices are.

 

Judge Alex Kozinski: I’m not a big advocate of people from law school to allow clinical courses or learning how to do trial or how to write and all of that. I think three years in law school is not long enough to learn all of the subjects you need to know substantively. So I’m not a big advocate of using law school as giving up substantive courses that they really will need in practice to learn how to write. You learn how to write by writing and by doing it and by getting a good mentor to take your word for it. I had a good mentor in my law firm, it was a partner who used to do to my writing what I do to my law clerk’s writing. And I would think that I write pretty perfect and he would just mark it all up and it looked like a bunch of chicken scratchings. But when you see it typed all out and all of these changes, it looked a lot better. So I think mentoring helps a lot. But basically, what you need to do is sit down and write.

 

Bob Ambrogi: Should law firms be doing more? When they hire lawyers out of law school, should writing skills be  something that they’re working with their young associates on?

 

Judge Alex Kozinski: I think they are. That’s what happened to me when I went to a big law firm, they didn’t let me turn stuff in without somebody looking at it and making it better. But what I do with my law clerks is I have a bunch of short stories that I used to read when I was in college and I found them and I printed them and I handed them out. I said read the short stories, they’re fiction. But fiction short stories are very much like opinions. They have to go in and out and tell a story and don’t waste any words. And then what you do is you just write and I talk to them about how they have to write with the reader in mind, not with themselves in mind. Having them read their own writing from the perspective of the reader and then edit. Go through draft after draft after draft looking for what’s wrong with the thing they’ve already written. And that’s the hardest part to teach is teaching people to look at their own writing as if they were strangers. To see their own writing as seen by other people. If you can learn that skill, you can become an excellent writer.

 

Bob Ambrogi: We need to take a short break at this point. We are going to be back in just a few moments to talk more about legal writing with Judge Kozinski and Judge Kopf.

 

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Craig Williams: Welcome back to Lawyer 2 Lawyer. This is Craig Williams, and with us today is Judge Alex Kozinski from the United States Court of Appeals for the Ninth Circuit, and Judge Richard Kopf from the US District Court in the District of Nevada. Before the break we were talking about Judge Kozinski’s advice to some young lawyers on how to learn how to write. Judge Kopf, what do you tell young lawyers to do and lawyers in general to sharpen their writing?

 

Judge Richard Kopf: In order to write well, I believe you must read. Read good writing. Particular forms of writing that I find constructive are some of the classic essays. Not unlike what Judge Kozinski was saying about short stories. But then again, it’s also helpful to read well-edited newspapers. It’s surprising what you’ll just pick up by osmosis if you force yourself as a matter of practice to read really good newspapers. Several of them a day, and not just the headline. Read some of the longer pieces. You’ll begin to see things that will be helpful to you as you write.

 

Bob Ambrogi: Judge Kozinski, the old sauces of the first rule of good writing is to know your audience. So with your writing and appellate opinion, who is the audience? Are you writing that for the litigants in the case or for the general public or for the justices of the Supreme Court who may end up reviewing your opinion? Who are you writing for?

 

Judge Alex Kozinski: Well, it depends a lot on whether it’s published or unpublished. If unpublished, then the writing is just for the parties, letting them know where they stand in their case and the result. If I’m writing a published opinion, then you have a lot of audiences, and you have to keep them all in mind. You’ve got the parties who already know the facts and the legal arguments. But you’re also writing for a lot of people out there who don’t know the facts and don’t know the legal arguments. And you’re writing for your colleagues who are going to be a client opinion in future cases. You’re writing for district judges who are going to be applying it in future cases. You’re writing for the lawyers in the offices who have clients who have a plan, and they want to understand what the law is. So you have to give enough information to make sense of the opinion and you have to announce a rule of sufficient generality so that it provides guidance to all those people in the future. If you’re writing a defense, then of course you’re writing hoping the Supreme Court will read it and take the case and maybe somebody will call them back. Or sometimes you’re in the sense hoping that judges in other courts will not file the majority opinion. So there are a lot of audiences like that. Or if we write, for example, a general memoir, there’s a very different audience. So I tell my law clerks, you’ve got to think of who your audience is. And you’re writing a very different kind of writing if it’s an internal memoir addressed to 28 other circuit judges and their staff. And if you’re writing an opinion that’s going to be read by dozens, hundreds, thousands of other people – not just for today but for many years to come. And if you’re doing that, you have a dual obligation. One obligation is to give them an effect so they understand what you’re doing and they understand the rule of law. And also not to throw in extraneous facts. Because every fact you add to an opinion narrows it and makes it a basis for somebody else in the future. It makes it a basis for somebody to say, “Well, to what extent is this additional fact, does that make a difference?” So what I tell my law clerks is don’t clutter it up with too many facts. Facts don’t matter, they don’t add to the message of the opinion. What they’re going to do is they’re going to confuse somebody down the road. They’re going to cause somebody to either intentionally or unintentionally misread the opinion. So we go through and expedite anything there that doesn’t advance what we are trying to do with our opinion, which is to establish a clearer law.

 

Craig Williams: In California, there’s a central clearing house, I believe it’s in the judicial counsel for the publishing of opinions where there’s another lawyer that just simply goes through all the appellate opinions to get published before they get published. Is the federal system like that?

 

Judge Alex Kozinski: No.

 

Craig Williams: So it’s simply what each judge writes.

 

Judge Alex Kozinski: It’s for a majority of a panel, and then the whole court looks at it when it comes out in several opinions and then petitions for a hearing which then get internally debated. But it is not circulated to anybody in particular. I think the federal circuit and maybe one or two other circuits will circulate draft opinions before they are filed to all the judges of the court. But I’m not exactly sure what is practiced in California, who his lawyer is or what he is looking for.

 

Bob Ambrogi: I’d wonder whether uniformity is a good thing, is that something we want. Judge Kozinski, you’re kind of known for your ability to write opinions to work humor in your opinions and break from the judicial style a little bit in your writing. You have, I think, a unique style of writing for a judge and that’s won you a lot of praise over the years. A lot of people appreciate your style of writing. I would think that bringing some degree of yourself or your personality or something to your writing even as a judge would be a good thing. Do you see it that way?

 

Judge Alex Kozinski: Yes. I’m not exactly sure what this person did. Was it somebody that looks for uniformity in style or was it maybe in uniformity in the law?

 

Craig Williams: I understand that it’s a citation format and stylistic references and the common references to the law. I don’t know how broad it is but I know that it’s done because I’ve heard some appellate judges talk about it.

 

Bob Ambrogi: Some of the legal publishers do that, even Thomson Reuters does some of that. Their editors go through and clean up the opinions.

 

Judge Alex Kozinski: They do it very little bit. We actually go through the soft bond volumes and correct them and send letters before they get into hard bond volumes. I’ve been doing this for decades, where we see what they do. And so there are few things they changed, in citation forms and the like, but they don’t change anything like word edits. And I think they would get into some difficulty with the judges if they did that.

 

Bob Ambrogi: Judge Kopf, I wonder if I could ask you the same question I asked Judge Kozinsky a few minutes ago about your audience. You’re a trial judge so it’s going to be a little bit different, but when you’re writing an opinion, who are you writing for? Who are you thinking about as being your audience?

 

Judge Richard Kopf: I have two. I have the parties and I have the Court of Appeals. And as a practical matter, the Court of Appeals doesn’t much care what I think about the law. What the Court of Appeals needs is an absolutely straight up recitation of the facts that I think are material to my disposition and whatever the matter is, it might be considered by the Court of Appeals. And for the parties, they’re entitled to some explanation of why I got from A to B. What I write is not precedential, and we, in my chambers, try to keep that constantly in mind. In some senses, we review cases that are reviewed on an assembly line. It is not our job, in my opinion, to try to write law review quality opinions, Eighth Circuit quality opinions, Ninth Circuit quality opinions, or opinions one might read from the Supreme Court. We need to decide cases. Now that doesn’t mean that we don’t care what we write. We do. But the  hydraulic pressure on us causes our audience to be much narrower. And that causes a certain compression in how we write.

 

Craig Williams: Judge Kozinski, where do you think lawyers venture into Rule 11 territory when they write? Is it misrepresentation of law, facts? What gets a lawyer into most trouble when they’re writing?

 

Judge Alex Kozinski: Well, first of all, Rule 11 violations are rare to begin with. But generally, they deal with facts. I think we’re pretty forgiving in terms of citing precedents, unless somebody really leaves out the knobs and knots out of the quote. We’re going to leave the cases if they really don’t stand for the proposition that they’re cited for, then that lawyer loses credibility, I don’t think there’s much point in sanctioning them. But the two areas where you can have sanctions where they misrepresent facts or records, then that’s the kind of thing we can’t check up on. And if they do that, then that’s something sanctionable. The other part is when they try to do something to give you some sort of unfair advantage. For example, with situations where they might hack the judge and the appellate judge or district judge. So that’s hacked multiple times and claims of bias when there wasn’t anything there. And then you get the feeling that this is somebody who’s trying to use unfair tactics to try to get to a judge whose rulings they don’t like. It’s a fine line when somebody steps over, but we have sanctioned people over that kind of conduct. We don’t like it when people stretch cases, but my view that is if you’re a lawyer and you stretch a case and I catch you – and I will, I’m not going to just rely on a case because a lawyer says that’s where it stands for and just write an order or an opinion and cite that case without reading it. If the case looks promising and seems to support the proposition or the side of supporting one proposition and then when I go to look at it, it doesn’t or has something completely different or something else, the opposite. Then to me, it seems to me that lawyer has just shot himself in the foot. The sanction will be in effect and I won’t believe anything else he says.

 

Bob Ambrogi: Judge Kopf, a lot of the cases that come in to the federal courts deal with very technical issues; intellectual property issues, scientific issues, technology issues. Do you have any advice for lawyers who are going into court on a case that doesn’t involve technical issues about how to approach those from a writing point of view? You can’t avoid some of the terminology and I suppose for lawyers, it’s always sort of a balancing act between not wanting to be too technical and not wanting to be too basic, I guess, in addressing some of these issues. Not wanting to talk up or not wanting to talk down to the judge or whoever that they’re approaching this to. Do you have from your experience any advice for lawyers on addressing those kinds of issues in their writing?

Judge Richard Kopf: Yeah, I have a real human being read the brief before submitted it. Somebody who didn’t know anything about that, who didn’t know anything about copyright, who didn’t know anything about some wizbang device. The substantive areas of the law aren’t that difficult. In my case, if I can’t explain it to my wife who’s trained as a journalist and admitted herself, then I need to rethink how I articulated. If I use some fancy word that you think I should know because you’ve spent the last 30 years litigating patents, you’re just fooling yourself. If it’s once again an audience question, do not assume that I’m smart. Assume just the opposite. Assume that I read at about the same level that folks read newspapers.

 

Craig Williams: It’s interesting, Judge Kopf, that you say that because as Bob is a former newspaper editor, I’m a newspaper writer, we were told and encouraged to write to the 8th grade level.

 

Judge Richard Kopf: It used to be the 4th grade level but I’m older than you. Maybe not Bob.

 

Bob Ambrogi: Justice Kagan says she writes for the readers of – was it the New Yorker?

 

Judge Richard Kopf: I’m not in a position to comment on that. Well, actually I am, but I won’t.

 

Bob Ambrogi: I was going to say, actually you are, but yeah.

 

Craig Williams: Well, it looks like we’ve just about reached the end of our program, and we’d like to take the time to invite our guests, Judge Alex Kozinski and Judge Richard Kopf to share their final thoughts and their contact information if they’d like to so that our listeners can reach out and perhaps discuss some of the more fine points of legal writing. Judge Kozinski, let’s start with you for your final thoughts.

 

Judge Alex Kozinski: My final thought is writing is thinking. And oftentimes, you develop your theory of a case by writing it out. It’s very important to go through that process, but then also to know when to come in and cut back and leave all the stuff that is not persuasive. What I tell my law clerks is when you’re dealing with a case and you’re writing an opinion, you’ve got to be able to imagine that – let’s say you’ve got a kid brother in college, and he comes in and he says, “What are you working on?” And of course the answer is I can’t tell you, it’s confidential, but let’s say you could tell him. Are you able to explain it to him, somebody who’s intelligent, who’s educated, but not an expert; are you able to explain to this person in plain English what it is that you are doing? If you can’t do it, then you don’t understand the case and you have to go back and rethink what you’re doing.

 

Craig Williams: Great, and your contact information?

 

Judge Alex Kozinski: Yeah, they can write to me at [email protected]

 

Craig Williams: Wonderful. Judge Kopf, your final thoughts and contact information if you’d like?

 

Judge Richard Kopf: My final thought is actually addressed to Judge Kozinski. I doubt if he’ll remember this, but when he was Chief Judge of the Claims Court, I represented a little bank in Nebraska that was angry with the Farmers Home Administration over what we thought was a violation of our financing statement. And I tried to get it into the local federal district court by dividing it up and doing a variety of claims. That didn’t work and it got transferred to the judge’s court. The judge was then kind enough to set the matter for oral argument on the government’s motion for summary judgement. And the judge was kind enough to allow me to appear by telephone. The argument proceeded, the government went first. After the judge was done questioning the government’s lawyer, I knew I had won. And then the judge called upon me, and after he was done with me, I knew I had lost. And indeed I had. I got off the telephone that day and I walked into my senior partner’s office and I said, “I just was engaged in the most intellectually challenging exercise of my life.” And that one experience remains true. Anyone who has an opportunity to appear before the judge is in for an intellectual treat. You can write to me if you want to at [email protected].

 

Bob Ambrogi: Well, Judge Kopf, at least you didn’t have to write a brief for that case, so that’s a good thing I guess.

 

Judge Alex Kozinski: Thank you, by the way.

 

Bob Ambrogi: Well thank you very much both Judge Kozinski and Judge Kopf for taking the time to be with us today and to share your thoughts about legal writing. We really appreciate you both for taking the time, thanks again.

 

Craig Williams: That brings us to the end of our show, this is Craig Williams with Bob Ambrogi, thank you for listening. Join us next time with another interesting topic. When you want legal, think Lawyer 2 Lawyer.

 

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