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The following are excerpts from Bryan Garner’s interview with Justice Antonin Scalia on his preferences and pet peeves in writing and oral argument. The transcribed remarks have been edited for clarity. For additional quotes from the Garner tapes, check the Blog of Legal Times this week. On legalese: “I said in one of my speeches a good test is: If you use the word at a cocktail party, would people look at you funny? [If you] talked about the �instant case’ or the �instant problem,’ that’s ridiculous. It’s legalese. �This case’ would do very well. Another one of my bete noirs of legalisms is �nexus.’ Yeah, �nexus’: what is this? It’s Latin for connection. You don’t make it more scientific at all by calling it a nexus. … “I never say �beyond the peradventure of a doubt.’ Peradventure is one of those words you wouldn’t use at a cocktail party. Get rid of it.” On trendy writing: “Avoid trendiness; that’s probably the other extreme of legalese. I never use, ever use, or let my law clerks use such trendy expressions as �the First Amendment informs our consideration of this.’ You now, the first time that was used that was very nice. It was a nice metaphor. But it has lost all of its vividness. … Another example of the same is � Marbury v. Madison and its progeny.’ I mean it was wonderful the first time it was used. It is trite now. Terribly trite. Get some other expression.” On his language upbringing: “My father was a linguist. He taught Romance languages at Brooklyn College. He used to read my opinions when I was on the [U.S.] Court of Appeals [for the D.C. Circuit] and correct my grammar. “The D.C. Circuit used to conclude all of its opinions with … �It is hereby ordered that the judgment of the District Court is affirmed’ or �is reversed.’ This used to drive my father up the wall. He would write me: �Son, you cannot order that it is affirmed. You have to use the subjunctive: �It is hereby ordered that it be affirmed.’ So I ended up being the only judge on the D.C. circuit who wrote “It is hereby ordered that the judgment of the district court be affirmed.’” On lawyers who respond to hypotheticals by saying, “That’s not my case”: “Boy, no. I mark it down. Absolutely, absolutely. I would rule against it if I could, just on [that point.] No, if I had to grade advocates in addition to deciding the case, what you would really get a �C’ for is saying that is not this case. … “What do you think, I’m a dummy? I’m asking you this hypothetical question because I don’t care about your case, I want to know how this principle, this issue that you’ve brought before us, how this is going to play out in hundreds of other cases. I am not about to do justice to your client at the expense of creating injustice.” On why good dissents are more interesting than the majority opinion: “Well, partly because they can be more the expression of the man or woman who writes them. You don’t have to get permission from somebody else to put in a vivid metaphor, or something like that — it’s up to you. Whereas in a majority opinion, you know, you have to often take out portions or phrases that other people don’t want to include. A good opinion has personality. And it’s easier to have personality when you’re writing for yourself.” On whether the Court is trying to become less splintered in its opinions: “No, it’s not trying any harder than it ever did. We’ve always tried to avoid splintered opinions, at least to this extent — that there is always one opinion for the Court. If five justices signed onto one opinion so that the bar knows what the lesson of the case is, after that, I can’t really say that the Court has tried in the past, or even tries today to suppress, once you have the 5-1 opinion — if other people want to write separate concurrences or dissents, who cares? “You know which opinion is the opinion for the Court, then you just don’t have to read the concurrences or the dissents. I happen to be of the old-fashioned view that a judge should not join any opinion that he does not believe is correct, on not just the principal point, but on all the points of law that are set forth, and I have never joined the opinion that I did not think was entirely correct. You can criticize me … not just for the opinions that I’ve written, but for the opinions that I’ve joined. … “Not every judge feels that way. Some feel, �Well, if it’s close enough for government work, just sign on to it.’” On his law clerks: “In my chambers, at least, my law clerks are the principal people with whom I discuss a case. I don’t discuss a case that much with my colleagues. … Where I really hone my view of the case is in discussions with my [four] law clerks, each of whom should know the case four times better than I do because … each one of them is assigned just one-quarter of the cases. “Most of my opinions, my law clerk will write the first draft. I like to think that the last draft bears my stamp on it, and they write the first draft as they are instructed to write it, you know, do this, this, and this. But I find that it is simply more efficient to have the first draft drafted by a clerk. … “[Then] I go through five times. I go at least five times and each time I put things in a slightly different way. It seems to be a better way to make the point.” On the downside of clerk-written opinions: “Well, there’s a significant downside if you don’t work on them. I mean if you just say �oh yeah’ and let it come out. … I think that is a downside, unless you go through it, you know, painstakingly and make sure that every sentence, every point, says exactly what you think has to be said, no more, no less. You know, I guess it invites laziness, you could say.” On oral argument: “You should not approach it the way you approach a brief. In a brief you have five good points that are all solid points, you present each of them. Point three is not your most important point, but it may be your most complicated point and you may spend half your brief on point three. In oral argument … you can put things in perspective, the way a brief can’t. Say, �Your Honor, we have five points in the brief, but you know, what we think is most important, what this case really comes down to is …’ and then boom! Hit your big point. Oh yeah … “You should also cast to the wind any concern about logical order. In a written brief you have to follow the logical order: point one leads to two, to three. … Not an oral argument. You want to get up and hit your strongest point first. Because you may never get off that point. And you don’t want to be spending your whole time on your opponent’s best territory. You want to be [discussing] your best territory. So it’s a different skill in that regard.” On sloppy briefs: “If you see somebody who has written a sloppy brief, I’m inclined to think this person is a sloppy thinker. It is rare that a person thinks clearly, precisely, carefully and does not write that way. “So it really hurts you to have ungrammatical sloppy briefs. Even typographical errors. Just shows that you’re not careful. And you’re citing cases to me. You want me to believe that these cases are the ones that are really relevant? Well, my goodness, if you can’t even proofread your brief, how careful can I assume you are?” On the summary section of briefs submitted to the Court: “The first section of the brief is a summary of arguments. I usually don’t read it because I’m going to read the brief. … Really. I mean, why would I read the summary if I’m going to read the brief? Can you tell me why I should read it? Shall I feel guilty about not reading it?” On reply briefs: “Don’t rehash your main brief, and some people do. [They say], �I have 40 pages to play with. I may as well go on again.’ Don’t go on again. Just hit the points that were made by your opponent. … I don’t want to hear the same thing again. You’re wasting my time. When you waste my time I begin turning the pages faster. And I may miss something that you would have wanted me to see. If there are fewer pages, I will pay attention.” On the importance of good brief-writing: “Judges have to read an awful lot. An awful lot, and you cannot expect them to pay a lot of attention to what you’re writing unless you’ve taken the pains to make it as easy for them as possible. … I want to move on to the next brief and the next case and I just want the kernel of the argument. I want it there in front of me, I want it clear, and I want it fast. And if possible, I want it elegant. But prolixity is probably the worst offense, and that most unskilled brief writers are guilty of.” On framing the issues presented in a brief: “That’s what the case is about, especially at the Supreme Court level. We don’t care who wins or loses. We care about what the legal issue is that is going to decide which is this case, or hundreds of other cases. So the crafting of that issue, [where you sat], �Look, this is the point of controversy. This is the core of it.’ Man, that’s everything. The rest is background music.”

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