"You don’t want to lose credibility," Justice Thomas told Bryan Garner during their 2007 interview [pdf]. "That is the one thing you bring with you. And if you lose it, it’s hard to get it back."

A lawyer’s credibility is his or her stock in trade, and that’s especially true in the appellate courts. Appellate judges rely on the lawyers before them to give an honest account of the facts below, and enter into an open dialogue about the application of the law to those facts. As Justice Kennedy said, "I’ve learned that the judges really want your help."

Few lawyers would question the proposition that they have a duty to be fair and honest about the facts and the record. Justice Ginsburg points that out in her interview with Garner: "if a brief-writer is going to slant something or miscite an authority, if the judge spots that one time, the brief will be distrusted – the rest of it." Nevertheless, it happens, at least in the intermediate appellate courts. After twenty-five years practicing in the appellate courts, I’ve certainly seen record cites that don’t support the accompanying factual assertion. And once in a great while you see brief-writers whose discussion of a few key authorities stretches the boundaries a little too far.

The justices remind us to be scrupulous about the little things. The first and last thing I do with every brief is to review the applicable court rules – a habit I learned with my first appellate brief, when a senior partner reminded us that we would not under any circumstances be getting any non-compliance calls from the court clerk. Proofread carefully and repeatedly — Justice Stevens observes that he "almost never" reads a brief with no typographical errors, but Justice Scalia told Garner that typographical errors undermine your credibility: "It just shows you’re not careful." Particularly with courts of discretionary jurisdiction, Justices Thomas and Kennedy both note that some attorneys insist that the cases stand for more than they really do. "[W]e know that’s not true," Justice Thomas said. "That’s not advocacy; that’s just being dishonest."

But protecting your credibility goes deeper than that. As Justice Thomas says: "I think when you give ground, you gain credibility. When you hold ground that you don’t deserve, you do not gain credibility; you lose credibility." Bringing arguments with no chance of success is not a cost-free exercise in the appellate courts. Filing a petition for review at your state Supreme Court claiming that half a dozen issues are worthy of review — or devoting an appellate brief to what’s really a jury argument — merely tells the court that you don’t understand its mission.

Justice Thomas’ advice reminded me of a story about Abraham Lincoln. Lincoln’s friend Leonard Swett tried dozens of cases while riding circuit with Lincoln, both as his co-counsel and his opponent. After Lincoln’s assassination, Swett told Lincoln’s biographer (and former law partner) William Herndon:

As he entered the trial, where most lawyers would object, he would say he reckoned it would be fair to let this in, or that . . . When the whole thing was unraveled, the adversary would begin to see that what he was so blandly giving away was simply what he couldn’t get and keep. By giving away six points and carrying the seventh he carried his case, and the whole case hanging on the seventh, he traded away everything which would give him the least aid in carrying that.

Justice Thomas and President Lincoln have important advice for our practices. Most appellate judges glance at the counsel signature block when they pick up a brief. Strive to give them a sigh of relief when they see your name on the brief, because they know your record cites will say what you claim, your cases are correctly cited, your brief is complete and intellectually honest; in short, that you’ve given them the help they want.

"God created man because he loved to hear stories," goes an Ethiopian proverb.

You might think that narrative has little or nothing to do with writing a good brief. But as Professor James Boyd White reminds us, "The law always begins in a story . . . It ends in a story, too." Chief Justice Roberts tells Bryan Garner in the LawProse interviews that story-telling is central to writing a compelling statement of facts:

It’s got to be a good story. Every lawsuit is a story . . . I don’t care if it’s about a dry contract interpretation; you’ve got two people who want to accomplish something, and they’re coming together — that’s a story. And you’ve got to tell a good story . . . you want it to be a little bit of a page-turner, to have some sense of drama, some building up to the legal arguments.

People are natural story-tellers; stories are an innate way for us to order and interpret all of human experience. As Barbara Tuchman wrote, "narrative is the life-blood of history." Telling a story in your brief that fits an established paradigm gives the result you want an internal consistency — any necessary inferences you’re asking the judge to make will seem reasonable. If you frame your story well, your desired result will have the virtues of fidelity — stories the decision maker knows to be true — and ideals — consistency with what the decision maker wants to be true. Tapping into stock stories and myths, like Joseph Campbell’s archetypal stories, is a powerful tool of persuasion.

The elements of story-telling are directly applicable to our craft, as several commentators have shown in recent years, see here [pdf] and here [pdf] and here. [pdf]. Every lawsuit occurs in a setting, of course — the factual background and the governing law. As in every good story, conflict takes center stage, and here, the lawyer must make a decision — is the story one of person against person? Against self? Against nature? Against society? The theme of a persuasive brief should define the central conflict in terms of the characterization, casting the story in a light the decision maker can identify with. And finally, all cases have a plot: set-up, complication, and finally, resolution, showing that the law must arrive at the result you’re seeking.

Point of view is central to all legal writing. Consider how different several famous cases of recent years sound, depending on which side’s version you read:

The Rod Blagojevich Case:

• "[A] political corruption crime spree."
   
• Impeachment was a secret deal with the legislature to raise taxes.

The Prop 8 Case:

• A radical departure from long-settled tradition.
   
• Vindication for equal treatment under the law.

The Bill Clinton Case:

• The President is degrading his office.
   
• Impeachment is a political power-play.

"It is something to show that the consistency of a system requires a particular result," Justice Oliver Wendell Holmes wrote in The Common Law, "but it is not all. The life of the law has not been logic: it has been experience." From Justice Holmes to Chief Justice Roberts, great advocates have always known that every brief — indeed, every case — must begin with a strong narrative.

Join us back here tomorrow for Part III of our four-part series on Bryan Garner’s SCOTUS interviews in LawProse.

In 2006 and 2007, legal writing icon Bryan Garner had an amazing opportunity — he interviewed eight of the nine then-sitting Justices of the United States Supreme Court on legal writing and appellate advocacy. The videotapes have been posted on Garner’s LawProse site for a while now, but last year, Garner made the Justices’ advice even more accessible, reprinting the transcripts in the journal he founded for the American Society of Legal Writers, the Scribes Journal of Legal Writing.

The transcripts have generated quite a lot of buzz around the law blog world, with posts and commentary at The Wall Street Journal’s blog,  Rebecca Copeland’s Record on Appeal, A Legal Yankee in King Arthur’s Court, the Rocky Mountain Appellate Blog and The Legal Times, among many others. Today we begin a four-part series of commentaries on the Garner interviews.

Lawyers are driven, busy people. Sometimes the last thing we want to do on our off hours is read even more. But one of the primary lessons the Justices have to teach us is that there’s no special secret to good legal writing; good legal writing is just good writing. As Justice Kennedy said,

I tell my law clerks, sometimes you can’t write anything good because you’ve never read anything good.

Chief Justice Roberts agreed: "the best teachers of writing are good writers who you read." Many of the Justices mentioned great writers they admire outside of the law. Justice Kennedy reads Hemingway, Shakespeare and Dickens. Justice Ginsburg mentioned the influence of one of her Cornell professors, the great Russian novelist Vladimir Nabokov. Justice Breyer mentioned Montesquieu, Stendahl and Proust.

All writing teachers highlight the importance of editing, and the Justices are no exception. Justice Scalia notes that he revises his own work "over and over again." Justice Thomas argues that "simplicity and clarity" requires "a lot of rounds" of "fairly intense" editing.

Strive for brevity in your legal writing, the Justices advise. Justice Breyer makes the point that a brief which is well below the Court’s page limit conveys the author’s confidence in his argument: "he thinks he’s really got the law on his side because he only took up 30." Chief Justice Roberts tells a story about clerking for Chief Justice Rehnquist. Justice Rehnquist reviewed one of Roberts’ draft opinions, and circled material throughout the draft. "Put it all in footnotes," he directed. When Roberts returned the draft to him, Rehnquist told him: "Now cut out all the footnotes." Brevity is a hard lesson for lawyers to learn, but the fact is, nearly everything we write would be improved if we cut five percent of the words, just as an exercise in streamlining and simplifying. Then do it again.

All of the Justices have their personal preferences, of course, and as is probably inevitable in a group of nine people, some of them contradict each other. Chief Justice Roberts thinks it’s okay to add a few facts to your statement of facts that don’t directly bear on the issue if it adds a little human interest. Justice Alito mentions that briefs and draft opinions tend to be full of dates that have no impact on anything. Justice Scalia never reads the summary of argument, but Justice Thomas nearly always does. Justices Scalia and Alito use footnotes; Justice Breyer never has. Justice Kennedy doesn’t think sentences should begin with "moreover" or "however" or "but," but Chief Justice Roberts and Justices Breyer and Alito all endorse the practice. Justice Kennedy dislikes nouns that have been turned into verbs – he mentions “tasked” and “impact” and words ending in “-ize” — and thinks most adverbs can be cut. Justices Kennedy and Scalia both suggest deleting trendy words. But there’s one thing all the Justices agreed on — legalese, particularly Latin, is almost never a good idea. Justice Scalia proposes the cocktail party test — if you’d get a funny look for saying it at a cocktail party, don’t put it in your brief.

Chief Justice Roberts and Justice Alito agreed that bad writing can lose a strong case, and good writing can win a marginal one. In the final analysis, according to Justices Kennedy and Ginsburg, lawyers are professional writers. As Justice Ginsberg observed:

 I think that law should be a literary profession.

Join us back here tomorrow for Part II of our four-part series on Bryan Garner’s SCOTUS interviews in LawProse.