– Making your Writing Memorable

WRITING MEMORABLE

Until now, we have shown how to write acceptable prose—prose more serviceable than that of most lawyers. Apply our principles and you will produce sturdy prose. For most purposes, sustained clarity is sufficient; you will be considered an able writer. But writing is more than clarity and concision. Many would-be painters are adept at drawing; they can draft a cloud or a human form that is technically acceptable. Their finished works, however, are not judged solely by technique but by more subtle considerations of style, feeling, and composition. So tone, voice, and style mark an essay as more than technically proficient. They enable a lawyer to transcend the mundane and make a piece of writing memorable.

Throughout our history, a few judges and lawyers have enriched our culture with their words. In writing about free speech, Justice Louis D. Brandeis could have said that “societies that suppress free speech have succumbed to irrational fears and caused harm that they later, knowing more, might have regretted.” Instead, he said: “Men feared witches, and burned women.”

Too often, though, lawyers don’t know the difference between prose that soars and prose that sinks. We have no formula for making prose memorable—indeed, to transcend composition that is merely serviceable the writer must forgo formulaic thought and expression. Memorable prose is writing that surprises through its freshness, writing that eschews cliché, bombast, triviality, artificiality, hollow embellishment, and many other affectations that mark the writer as tin-eared and callow. In what follows we hope to persuade by example. We present illustrations of prose that misses, and end by offering examples that instruct, entertain, and sing.

Style That Fails

Here is a paragraph lifted from a brief submitted to us as an example of “good” lawyerly writing. In this passage, the lawyer is discussing a statute that permits a child’s out-of-court statements to be admitted in evidence:

Despite the facial clarity of the plain words of the above statute, the litigant fares no better than the scholar in searching for a definition of “corroboration.” The statute implies that the term is not only susceptible to definition, but indeed, demands that such a definition be expressed in functional operation if the statute is to represent more than precatory words. Absent definition, the statute is a right without a remedy, a tiger without fangs—an osmotic membrane masquerading as a shield for abused children.

The tangled images alone are enough to trip the reader. To show that the legislature has botched the statute, the lawyer should be understated, cool, direct, and should not resort to bombast and purple phrases. Garish images are not the obvious alternative to the gray run of legal prose; just because this kind of language differs from the ordinary does not make it effective.

“Even good writers become infected with the bug of ostentation when they write for courts,” said Milton Gould, a New York trial lawyer who was also a noted storyteller. “The older I get, the more I admire succinctness, and the more I despise flash.” Scott F. Turow, a lawyer and best-selling novelist, told us that the legal writer should strive for “lucidity and quiet persuasiveness.”

Evan Thomas, an editor at Newsweek who spent a summer in the 1970s as an associate at a large law firm in New York, recalls: “The young lawyers wrote this dense, turgid, overanalyzed convoluted stuff, while many of the older lawyers wrote so simply and clearly that their prose could go on a sports page. For all their verbiage, the young lawyers never got to the point, while the old guys zeroed right in.”

Many lawyers are so immersed in the plodding prose of the workaday world that they confuse an ornate, oily, and overdone tone with good writing. Or they are beguiled by simple or nonlegal expressions and think that even the pedestrian phrase shines. At one firm we visited, a young associate told us breathlessly that a partner had coined a perfectly marvelous phrase that was, unfortunately, now being rather overused in the firm’s briefs—it was that good. The phrase: “strikingly similar.”

Stuffiness even infects some lawyers’ nonlegal writing. Here is the first paragraph of a fund-raising letter to 30,000 Harvard Law School alumni:

In preparation for Year 33 of the Annual Giving campaign of the Harvard Law School Fund serious consideration was given as to the amount that should be set for this year’s goal. Last year contributions to the Fund from alumni and friends were $3,524,600, a new record amount both overall and in alumni gifts, yet we were $75,400 short of our $3.6 million objective. The setting of this year’s goal at $4 million, therefore, represents a formidable challenge.

Burdened by heavy nouns, we slog through the anonymity of the passive construction to find unsociable sentences. That is a strange way to induce people to part with their money, a lot of money, a redundant amount of money, a “new record amount”! This opening paragraph wholly misses its audience; it dwells on the woes of the fund’s officers, not on the concerns of the potential givers.

In a more serious matter, a Wisconsin lawyer misjudged his audience in writing a snide open letter to the judges of the state court of appeals, who had affirmed a decision to commit his client to a mental institution. Here’s how he began:

You are probably quite smug about your decision in this case. You were presented with an issue which was admittedly not clear cut and which had a potential impact on a fairly large segment of persons who had been committed under the Wisconsin insanity law. So what did you do? You think you managed to avoid deciding the case altogether. Sorry I can’t congratulate you on this clever evasion of a precedential statutory interpretation. This may come as something of a shock, but you didn’t avoid an interpretation of the insanity law with a major impact on this state.¹

This lawyer misconstrued the meaning of informality. A respectful, colloquial tone might have caught the judges’ sympathy; instead, this snide, taunting tone irritated the Wisconsin Supreme Court, which dismissed his petition and noted:

At a minimum, defense counsel violated a cardinal rule of effective appellate legal writing. The rule is: “Avoid disparaging lower courts or opposing parties.” At a maximum, some language in the petition may have gone beyond the realm of permissibly zealous advocacy.

Similarly, when judges depart from their sober tone, they often lose control of their language and write opinions memorable only for their silliness, immaturity, or hyperbole. In 1930 Judge M. M. Logan of the Kentucky Court of Appeals dissented from a majority opinion that upheld the dominion of a surface owner over caves that lay beneath his land:

Let us give thought to the petitioner Edwards, his rights and his predicament, if that is done to him which the circuit judge has directed to be done. Edwards owns this cave through right of discovery, exploration, development, advertising, exhibition, and conquest. Men fought their way through eternal darkness, into the mysterious and abysmal depths of the bowels of a groaning world to discover the theretofore unseen splendors of unknown natural scenic wonders. They were conquerors of fear, although now and then one of them, as did Floyd Collins, paid with his life, for his hardihood in adventuring into the regions where Charon with his boat had never before seen any but the spirits of the departed. They let themselves down by flimsy ropes into pits that seemed bottomless; they clung to scanty handholds as they skirted the brinks of precipices while the flickering flare of their flaming flambeaux disclosed no bottom to the yawning gulf beneath them; they waded through rushing torrents, not knowing what awaited them on the farther side; they climbed slippery steeps to find other levels; they wounded their bodies on stalagmites and stalactites and other curious and weird formations; they found chambers, star-studded and filled with scintillating light reflected by a phantasmagoria revealing phantoms, and tapestry woven by the toiling gods in the dominion of Erebus…. They knew nothing, and cared less, of who owned the surface above; they were in another world where no law forbade their footsteps. They created an underground kingdom where Gulliver’s people may have lived or where Ayesha may have found the revolving column of fire in which to bathe meant eternal youth.²

Here is the unintentionally hilarious opening paragraph of an opinion by Justice Frank A. Carlin of the City Court of New York in 1941:

This case presents the ordinary man—that problem child of the law—in a most bizarre setting. As a lonely chauffeur in defendant’s employ he became in a trice the protagonist in a breath-bating drama with a denouement almost tragic. It appears that a man, whose identity would be indelicate to divulge, was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Laden with their loot, but not thereby impeded, they took an abrupt departure, and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street toward 2d Avenue, whither they were resorting “with expedition swift as thought” for most obvious reasons. Somewhere on thoroughfare of escape they indulged the stratagem of separation ostensibly to disconcert their pursuer and allay the ardor of his pursuit. He then centered on for capture the man with the pistol, whom he saw board the defendant’s taxicab which quickly veered south toward 25th Street on 2d Avenue, where he saw the chauffeur jump out while the cab still in motion, continued toward 24th Street; after the chauffeur relieved himself of the cumbersome burden of his fare the latter also is said to have similarly departed from the cab before it reached 24th Street.³

Lest anyone suppose these grand flourishes belong to an age past, let us sample two opinions written in the mid-1980s. First, an opinion by Justice Bruce Wright of the Supreme Court in Manhattan, concerning a property dispute between a dentist and an assistant who became his lover and then jilted him for another man. This is how Justice Wright begins:

Two young people, cohabiting without the ceremony of a wedding, lived for a time in blissful harmony and trust, confident in the fragile balustrade of an imagined future and its longevity. They plighted a troth without ritual. Wrapped in the drama of their mutual pulse, they were ill-starred. Passionate pilgrims, they had no seer to caution their fall from the grace of doomed affection, or warn that love places its victims on emotional welfare rolls.⁴

Now the prose begins to gallop:

As with the Trojan War, where the heroes of Homer squabbled, some of the symmetry of tragedy crept into the relationship of the parties. Ill- starred lovers have from time immemorial stumbled gloriously among the snares of their own drums. Troilus sighed for the infidelity of Cressida. Pyramus and Thisbe had their midsummer night’s meesalliance, as did Othello and Desdemona. There are precedents a-plenty for bitterness and the scathed spirit…. Palinurus, wounded by betrayal, wept that, “The object of loving is to end love.” Savaged by the treason of uxorial cuckoldry, he felt, in the words of a poet that “Life goes on, but I don’t remember why.”

And then, in an abrupt order, Justice Wright denied a motion for a preliminary injunction, allowing the case to proceed to trial. That’s a lot of erudition to waste on a preliminary motion.

Judge Richard Curry of the Cook County Circuit Court ruled on the Chicago Cubs’ request to install lights in Wrigley Field:

Baseball, “the national pastime”—the thing of which young boys dream and old boys fantasize—the subject of songs, poems, satire, ballads and verse—the occupation of heroes and bums—the grist for the columnist and the gambler—the avocation of the bystander and the theatre for the grandstander—the ballast for the summer months and the leaven for the winter months—the theme which accommodates both nostalgia and expectation—a game that can be played as work, witnessed as fun and memorialized as history—a diversion which has developed its own lexicon with words such as “bush”; “choke”, “whiff”; “balk” (and in Chicago) Hey! Hey!…In as much as this case is in the domain of “everybody’s business” its issue should be deliberately stated in a manner most likely to attract and hold maximum attention. Perhaps something like this:

Do those who schedule play time for the games of our national pastime have the right to interfere with bedtime by starting the game at nighttime, instead of the customary daytime?⁵

Blithely misspelling his way through sixty-two pages of a little law and a lot of lore, Judge Curry winds up:

“…YOU’RE OUT!”

Yes, you’re out. O…U…T. The Cubs are out. The inning is over. The contest is lost. Now it’s time for the box score, summary and the wrap up. Have you ever heard a postmortem on a sporting event when some “intangible” wasn’t cited as an element in the victory or the defeat? Well we have one in this case also. The Cubs lost, of course, for all of the reasons stated above but, in addition thereto, they should have had a better scouting report before coming to Court. Everyone around the courthouse is familiar with “Justice” with her robes flowing, her blindfold and her scales. What the Cubs’ “book” on her failed to note is that she is a southpaw. Justice is a Southpaw and the Cubs just don’t hit lefties!!!

“…AT THE OLD BALLGAME”.

Judge Curry’s opinion is so overspiced (or overcooked) and his sarcasm so heavy-handed that the plaintiff could justifiably cry foul. (See what happens when you read too much overheated prose.)

Judge Curry evidently meant to be funny. But self-conscious humor by those who cannot control it is puerile. Even lawyers and judges who are genuinely talented and funny writers should restrain themselves. As Justice Benjamin N. Cardozo said in 1925 in his famous essay “Law and Literature”: “Flashes of humor are not unknown, yet the form of opinion which aims at humor from beginning to end is a perilous adventure, which can be justified only by success, and even then is likely to find its critics almost as many as its eulogists.” And as Judge George Rose Smith of the Arkansas Supreme Court noted in the 1960s: “Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.”⁶

Probably the worst form of judicial humor is doggerel. In a suit filed by a seaman against a shipowner to recover lost wages, Edward R. Becker, U.S. district judge in Philadelphia, explained why he resorted to verse:

The motion now before us

has stirred up a terrible fuss.

And what is considerably worse,

it has spawned some preposterous doggerel verse.

Plaintiff’s counsel, whose name is Harry Lore,

read defendant’s brief and found it a bore.

Instead of a reply brief, he acted pretty quick

and responded with a clever limerick:

Not to be outdone, the defense took the time

to reply with their own clever rhyme.

Overwhelmed by this outburst of pure creativity,

we determined to show an equal proclivity,

Hence this opinion in the form of verse,

even if not of the calibre of Saint-John Perse.⁷

A Michigan appeals judge, J. H. Gillis, in upholding a lower-court ruling that denied damages to the owner of a tree rammed by an automobile, began his opinion:

We thought that we would never see

A suit to compensate a tree.⁸

These examples are dreadful. But even good doggerel (think Ogden Nash) and light verse (Joyce Kilmer) are inappropriate in legal writing.

Style That Works

Humor can have its place if it emerges from substance rather than form. A pro se plaintiff sought damages in Judge Gerald J. Weber’s court against “Satan and His Staff” for placing “deliberate obstacles in his path.” Judge Weber, of the Western District of Pennsylvania, could have dismissed the case peremptorily or responded with a derisive opinion. Instead, he chose to treat the plaintiff with dignity, and the opinion that resulted is dry and understated. Here is a portion of Judge Weber’s solution:

We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegations of residence in this district. While the official reports disclose no case where this defendant appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an account of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time.⁹

Judge Weber is funny with a straight face. Wry humor is difficult for even the best stand-up comics, who can call on body and facial expressions; it’s far more difficult for a writer, especially one writing in the legal tradition. Nevertheless, wit deftly used elevates a passage to make it memorable. Here’s Judge Frank R. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit in Chicago:

Morton Goldsmith was the head of a chain of clinics and pharmacies, many flying the banner of Drug Industry Consultants, Inc. (DIC). Between 1981 and 1984 DIC’s clinics and pharmacies, and those of associated enterprises, prescribed and sold large quantities of codeine-based cough syrups to addicts. The clinics were selective. To be a patient, you had to have a Medicaid card. Not necessarily yours; anyone’s would do. The Medicaid card was the key to DIC’s profits.¹⁰

Self-deprecating wit helped Supreme Court Justice Robert H. Jackson blunt the embarrassment of disavowing a position he had taken as attorney general a few years earlier. In an elegant paragraph into which he skillfully wove quotations, Jackson wrote what has become almost the standard apology for judges who must retract or lawyers who must backtrack:

I concur in the judgment and opinion of the Court. But since it is contrary to an opinion which, as Attorney General, I rendered in 1940, I owe some word of explanation. I am entitled to say of that opinion what any discriminating reader must think of it—that it was as foggy as the statute the Attorney General was asked to interpret…. Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney recanting views he had pressed upon the Court as Attorney General of Maryland. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, “The matter does not appear to me now as it appears to have appeared to me then.” And Mr. Justice Story, accounting for his contradiction of his own former position, quite properly put the matter: “My own error, however, can furnish no ground for its being adopted by this Court….” Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—“Ignorance, sir, ignorance.” But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: “I can only say that I am amazed that a man of my intelligence should have been guilty of such an opinion.” If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.¹¹

Jackson adroitly adapts his tone to solve the problem he faced: how to apologize for errors while retaining his dignity and authority. The reader, after all, might suppose that if he was wrong once, as he admits, he might be wrong even now. Jackson’s tone disarms the reader. A man who confesses his mistakes, without false humility or obsequious servility, is absolved of blame. In invoking great men of the past who had confessed to similar errors in similar ways, in acknowledging the fallibility of mature adults, Jackson manages to amuse the reader without detracting from his solemn message: Trust me now.

Some years later, to justify his own repudiation of an earlier opinion, California Justice Stanley Mosk quoted Jackson’s statement and appended to it a memorable line from Supreme Court Justice Felix Frankfurter, who had also had occasion to change his mind: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”¹²

Tone is bottled in no formula. The appropriate tone depends on your audience and your sense of self: reserved or casual, solemn or whimsical, serious or ironic, sober or sarcastic, genuine or sycophantic. As a lawyer, you always have a serious purpose, but your tone need not be somber. (Think of Mark Twain, whose tone was always comic, his purpose usually serious.) A trivial quarrel need not be dismissed by a joke. Nor does a case with large stakes compel a solemn tone. Here is how U.S. District Judge William C. Conner in Manhattan deflated the pretensions of two powerful corporations:

The lawsuit represents a major battle in an endless war between two titans of the over-the-counter (“OTC”) drug industry, in which each accuses the other of falsity in its advertising claims of efficacy and safety. Small nations have fought for their very survival with less resources and resourcefulness than these antagonists have brought to their epic struggle for commercial primacy in the OTC analgesic field.¹³

Tone is embedded in every piece of writing. Formality and dullness are tones as much as a cool wit. You cannot escape tone; you can only hope to strike the proper one for your purpose. The choice lies not simply between the dull and the extravagant. Tone, like style, ranges across a spectrum between these extremes.

Much of this book has been concerned with questions of style: long sentences or short, fancy words or plain, active voice or passive, direct statements or oblique comments. The spare style is often identified with Ernest Hemingway, an author who started as a journalist and whom many legal writing specialists suggest emulating. This advice angers others, who say that what Hemingway did is not what lawyers ought to do.¹⁴

Hemingway deserves better. His name has come to stand for two distinct propositions: (1) Lawyers should (or should not) write in a spare style, and (2) lawyers should (or should not) narrate stories about people rather than expound abstract concepts. The debate is oversimplified and jumbled. It disserves Hemingway, and lawyers, to suppose that questions of style and storytelling are either-or propositions.

We advocate a spare style, but we are not suggesting that lawyers imitate Hemingway. Lawyers must at times discuss abstract principles, but they must remember that the best way to engage their audience is to tell stories. Reflecting on hundreds of petitions for certiorari that he read each year while at the Wall Street Journal, Stephen Wermiel said: “It strikes me that lawyers feel no need to make their cases sound interesting. And I think that is a serious error…. The justices need to have their interest captured just as much as I do.”

Here’s Judge John R. Brown, a widely admired judge of the U.S. Court of Appeals for the Fifth Circuit, telling a story, as he began an opinion about a collision on a navigable waterway:

It was a dark and stormy night.* A patchy, low-lying fog covered the murky waters of the river and obscured the banks. Ships, passing in the night, were but phantoms, vague outlines disappearing into the mist. Ships’ whistles, echoing across the dark expanse, seemed like mournful cries from another world. Then suddenly, looming out of the darkness, another ship appeared. The distance was too small; time too short; before anyone could do more than cry out, the unthinkable occurred. The ships collided. The tug, helpless, drifted downriver. Floundering like some giant behemoth wounded in battle, the tanker came to ground and impaled itself on some voracious underwater obstruction. And still the whistles, echoing, seemed like cries from another world.¹⁵

The style of this passage is too flamboyant for some tastes, but it transports readers to the site of the accident, allowing them to see and hear the collision. This description is more evocative than a flat “Two vessels, one large and one small, were involved in a waterway collision on an evening of inclement weather.”

* Brown’s “dark and stormy night” repeats the opening line of Edward George Bulwer-Lytton’s novel Paul Clifford (1830), a line that has spawned an annual parody contest.

Another judge, Donald Burnett, of the Idaho Court of Appeals, affected the taut, matter-of-fact style favored by some mystery writers, what might be called an “opinion noir”:

It was a shotgun blast in the early morning that killed Merardo Rodriguez. As he lay on the floor of his house, his wife placed a pillow beneath his head and watched him die.¹⁶

This style—direct, immediate, forceful—can also be effective in non-narrative writing. Note, for example, the understatement and economy used by Judge Joseph R. Nolan of the Massachusetts Supreme Judicial Court in his dissent from the majority’s decision to permit life-support equipment to be turned off:

In the forum of ethics, despite the opinion’s high-blown language to the contrary, the court today has endorsed euthanasia and suicide. Suicide is direct self-destruction and is intrinsically evil. No set of circumstances can make it moral. Paul Brophy will die as a direct result of the cessation of feeding. The ethical principle of double effect is totally inapplicable here. This death by dehydration and starvation has been approved by the court. He will not die from the aneurysm which precipitated loss of consciousness, the surgery which was performed, the brain damage that followed or the insertion of the G-tube. He will die as a direct result of the refusal to feed him. He will starve to death.¹⁷

Dismissing his colleagues’ rhetoric as “high-blown,” Judge Nolan uses plain words (suicide, evil, die, starve), relatively simple syntax, and stark contrasts (“will die” vs. “will not die”).

As these examples suggest, eloquence comes more from simplicity than from a profusion of lush and overblown words. Long words and dandified phrases deaden rather than enlighten. At the end of a remarkable commencement address at Yale Law School in 1979, Professor Leon S. Lipson gave a four-minute exhortation composed entirely of one-syllable words. Here is an excerpt:

On this day, or soon, you will take leave of this yard, these halls, and us. We wish you well. As your Sage for a Day, coaxed to preach if not to teach, I ought to send you on your way with great store of wise and shrewd saws, short sharp tools that I should put in your hands for you to wield so as to carve a good and full life from the wild lush fields of the law.

But I know that you did not wait to hear this from me, or till now. You made haste to shop for those tools as soon as you came here. In the past three years, or—as it may be—two or one, you have learned some facts and some law; you have made some friends, young and not so young and not so old and old, learned from them and they from you; in class and in your rooms, with your friends or by your own lone selves, you have picked a few books to bits, page by page, case by case, line by line. Your brains are stocked with rules clear or dim, with thoughts keen or dull, some of them your own; you have heard much of rights and wrongs, of courts and boards and jails, of new ways to tax the rich or help the poor or plead to a charge or bust the trusts or split the stock or cut the pie, and why not to; your ears are cocked to catch (if not to heed) the still small voice of truth, and your eyes are strained to spy out a star to steer by.

As you lead your life in the law, we hope you will do good, grow wise, and thrive. In the years to come, think of us now and then. Come back to see us when you can, and more than once if you can. Let us hear from you words of your feats of skill and works of art….

As you grow more and more skilled in what you do, and as you ask why you do what you do, we trust that on the whole we here shall prove to have meant much more to you: more as the time goes on, and not least when you have no thought of us at all, for, will you nill you, you will bear—all the rest of your life—the stamp, or brand, or blaze, of the Yale Law School.¹⁸

Professor Lipson’s talk is notable as a tour de force, rather than for any single line. But sometimes one memorable line can elevate an otherwise mundane brief. A single sentence in legal discourse can recast or transform the debate. Irwin Rochman, a defense lawyer serving as a special state prosecutor in New York, once spent several hours composing a single sentence. The name Attica, he wrote, “should be a symbol not only of riot and death, but also of the capacity of our system of criminal justice to redress its own wrong.”¹⁹ Rochman had two goals: to persuade a judge to dismiss the remaining indictments stemming from the prison uprising in 1971 and, secondarily, to have the New York Times choose his sentence as its quotation of the day. He was doubly successful.