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The Winning Brief By Bryan A. Garner (Oxford University Press, 516 pages, $50) How to improve the state of legal writing? Our contentious profession doesn’t agree on much, but lawyers and judges concur that all too many briefs are all too badly written. The problem can’t be lack of advice, because shelves of books explain the finest points of legal writing. But how to choose among these works, and, anyway, who has time these days to read books about how to write? The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, the latest addition to this genre, is an excellent solution for busy lawyers, whether they want a resource for browsing or a complete education in brief writing. Carefully crafted by language guru Bryan A. Garner, this book has plenty to interest the most sophisticated writers, even those pedants who only want to check on their prized peeves. The Winning Brief is notable for another reason as well: It strikes a blow for one side in the long-running English Usage War. That blow is all the more effective because, unless you are looking for it, you won’t even notice it. Before we get into the Usage War, it helps to know author Garner. He is a one-man industry, responsible for a dozen big books on legal writing and, beyond that, on general English usage. Garner compiled the Dictionary of Modern Legal Usage, a major reference work, and he edited the current Black’s Law Dictionary. Last year, he published the latest edition of his Modern American Usage. This is a hefty guide to American English that consciously echoes the H.W. Fowler classic, Modern English Usage. Remarkably, Garner has been writing for only 15 years. If the fountain pen of language usage is being passed to a new generation, Garner is doing his best to pick it up. His credentials as a dictionary writer and general stylist make him unique among experts in legal writing. His intense passion for language makes him unusual by any measure. One Garner essay, published in an earlier book, is the veritable Augustine’s Confessions of the language nerd. According to Garner, “on a wintry evening” at “the age of 16,” he virtually relived St. Augustine’s spiritual awakening. In Garner’s case, though, the inspiration was not the Bible, it was the language guide Usage and Abusage. “Never,” Garner recalled — one can picture the glow on his face — had he “held a more exciting book.” From that day forward, “the use of the English language” was his “all-consuming passion.” This is no exaggeration. While still in high school, Garner “committed to memory” a shelf of language books, starting with Modern English Usage itself. Next, this remarkable teenager considered the many paths open to him, studied English and linguistics, then chose, of all things, law school. Perhaps it was a case of the evangelist going to the sinners. Anyway, it is fortunate for us that Garner chose as he did, because his years of reading legal papers led him to produce The Winning Brief. This book serves up concrete, step-by-step advice: from planning a brief to designing its structure, to writing crisp sentences and sound paragraphs, all the way to formatting the final document. In structure, The Winning Brief follows Garner’s own tip No. 1, to “plan every writing project by breaking it up.” Like Strunk and White, Garner divides his advice into bite-sized pieces, so that we can digest the book as a whole or sample it in parts. Garner calls these pieces “tips,” and each is a gem of clarity and concision. To choose at random: “Every brief should make its primary point within 90 seconds” because “only one thing matters to the judge: what question he or she is supposed to answer.” And “uncover buried verbs — especially words ending in -ion” — in order to “force yourself to be more concrete about people performing actions.” Each tip contains a page or so of explanation. Taking his own advice to “show, don’t tell,” Garner illustrates his tips with pages of writing samples, good and bad, taken from real briefs. Garner writes with authority, but he acknowledges the limitations of any language book. He explains that his tips are “guidelines, not dogmas,” and reminds readers that they are “sure to encounter situations” in which they would “be better off ignoring” any particular advice. He justifies each tip by explaining how it will increase a brief’s persuasive power. Garner urges writers to stamp out legalese and relax their tone, but he does insist on certain standards. He believes in the old-fashioned virtues, such things as proper paragraphing, the distinction between that and which, and the precise deployment of the comma. He also dispels some of the urban legends of Composition 101, warning us to reject common “superstitions” that are inimical to persuasive writing. He explains why it can be a good thing to end a sentence with a preposition, to split an infinitive, to write a one-sentence paragraph, and so on. Garner attacks other writing practices that are as widespread among lawyers as the BlackBerry. Perhaps my favorite Garner suggestion is that writers remove case citations from the text of their briefs and put them in footnotes. He shows how sticking citations in the middle of a text clots up the discussion, hides weaknesses in the argument, and forces the reader to work harder. Dropping those citations down to the footnotes exposes these weaknesses and forces the writer to draw a cleaner line of argument. Garner explains that lawyers placed citations in the text in the first place only because of the obvious limitations of manual typewriters. Now that we write on computers, the only remaining reason to muck up arguments with case citations is sheer force of habit. When footnotes contain legal arguments, though, Garner hates them. Echoing the advice of numerous jurists, most prominently Justice Stephen Breyer, Garner advocates what he calls an “up or out” policy: Put it in the text or drop it. Garner also criticizes the habit of stashing legal points in citation parentheticals, then tacking them onto the ends of sentences. As Garner puts it, ” ‘important parenthetical’ is surely an oxymoron.” This advice should be framed and hung in law offices across the land. It is the cousin of an aphorism that crystallizes Garner’s first principle of writing: Holmes’ “ Go for the jugular and let the rest go.” Repeatedly, Garner’s 100 tips remind us how important it is not to take swipes (however footnoted) at just a few capillaries. Also illustrating Garner’s philosophy is his advice on the minefield of gender: “Shun sexist language, but do it invisibly.” He explains how to avoid offensive constructions without slouching into grammatical philistinism — for example, without substituting the plural “their” for the singular “his” or “her” in a singular sentence. At the same time, he warns against using legal briefs to parade one’s anti-sexist convictions. And Garner rigorously follows his own advice, never indulging in political comments, even winks or nods. That is, of course, a temptation even the driest legal works sometimes cannot resist. See, e.g., The Bluebook: A Uniform System of Citation (17th ed. 2000) (passim). Now back to the Usage War. For anyone who has missed it, opposing camps have long been locked in this twilight struggle over the future of the English language. This is modern warfare, lacking a single front, but it boils down to the “prescribers” versus the “describers.” The prescibers worry about maintaining standards for language, emphasizing how words should be used. To them, it matters whether someone is “flouting” or “flaunting.” The describers reject those standards as arbitrary dogma and instead emphasize the way people actually talk. “Who really cares,” a describer would ask, “whether a writer prefers ‘which’ to ‘that,’ or ‘imply’ to ‘infer’?” Well, Garner cares — see the examples above — and this attitude places him squarely in the prescriber camp. Contrary to what you might expect, it is the describers who tend to be the teachers, professors, and library-dwelling linguists. It is the prescribers who tend to be the practical sorts: journalists, speechwriters, authors, and, yes, lawyers. Think William Safire, Kingsley Amis, Robert Graves, and even George Orwell. Garner, a lexicographer but also a lawyer, fits neatly into this practical tradition. Garner makes no mention of this dispute in The Winning Brief. His goal in the book is, after all, to persuade his own readers. But in Modern American Usage he openly admitted his prescriber sympathies. Ever the reasonable man, however, he still tried to straddle the two camps by labeling himself a “prescriptive describer.” There, for once, Garner was not very persuasive. It is true he is not a tradition-bound prescriber. His advice is based on what works, not on how the ancient Romans wrote, nor on the sheer fun of being a snob. But The Winning Brief is unmistakably a prescriber’s book. Garner does not accept a usage, as a describer would, just because most lawyers write that way. Maybe Garner’s expression of sympathy for both sides in the Usage War is a sneaky attempt to preserve the air of neutrality he so effectively assumes in The Winning Brief — all the better to smuggle his prescriber message into the book. This is exactly the kind of false “neutrality” that makes so many law professors see red: an ideological agenda wrapped up in a harmless-looking package. Those professors won’t be reading The Winning Brief to improve their writing, but practicing lawyers should. Those who do will get some of the best brief-writing advice that I have seen in a single volume. For its judgment, its comprehensiveness, and its sheer lucidity, The Winning Brief has earned a place among the few books that should sit at the elbow of every lawyer who puts words on paper. Andrew J. Morris is a partner in the D.C. office of Mayer, Brown, Rowe & Maw.

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