Videos offer rare glimpse at pet peeves

Eight U.S. Supreme Court justices entered the realm of YouTube on January. Speaking passionately, sarcastically and angrily as they answer questions about brief-writing and oral advocacy in online videos on LawProse Inc.'s website. The justices' pet peeves spilled forth, and lawyers are taking notes.

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A collection of videos is available on the Web site of LawProse Inc. Raw and unvarnished, they star eight of the nine justices as they speak passionately, sarcastically, angrily into the camera, answering questions about brief-writing, oral advocacy and their own love/hate relationships with the written word. Their interviewer is Bryan Garner, editor of Black’s Law Dictionary and author of several books on legal writing and language usage. He posted the eight videos on the Web site in January. Garner has interviewed dozens of judges, lawyers and writers over the years, seeking video clips for use in his profitable legal writing seminars. But he realized that the interviews with the justices, conducted a year ago or more, were a unique treasure from which he should not profit. The justices’ pet peeves spill forth, and lawyers are taking notes. Chief Justice John G. Roberts Jr., for example, thinks lengthy citations to Web sites that are now common in briefs are an “obscene” distraction “with all those letters strung together.” Long-winded briefs bother the chief even more. “I have yet to put down a brief and say, ‘I wish that had been longer,’ ” Roberts said dryly. Justice Stephen G. Breyer agrees. “If I see [a brief that is] 50 pages, it can be 50 pages, but I’m already going to groan.” On the other hand, he said, “If I see 30, I think, well, he thinks he has really got the law on his side because he only took up 30.” Justice Anthony M. Kennedy, it turns out, hates it when lawyers turn nouns into verbs by tacking on “-ize” at the end, as in “incentivize.” Such showy, made-up words, he sniffs, are “like wearing a very ugly cravat.” Justice Antonin Scalia can’t stand it when briefs refer to a precedent “and its progeny.” He growls, “I think it was wonderful the first time it was used. It is trite now. Terribly trite. Get some other expression.” Scalia also thinks that lawyers are wasting their time when they write a summary of their argument at the beginning of a brief. “I mean, why would I read the summary if I’m going to read the brief?” However, if you skip the summary to please Scalia, you risk annoying Justice Clarence Thomas. He tells Garner the summary section is the most important part, acting as a preview “like giving you, you know, what’s going to be on TV next week.” The tapes reveal something about the justices’ early experiences with writing. Justice Samuel A. Alito Jr. recalls that his father, a one-time English teacher, would “pick apart every sentence and every word” of school compositions he had written. “Sometimes a pretty painful experience,” Alito said. Justice John Paul Stevens’ mother was an English teacher, his father wrote poetry and, he tells Garner, “I had three older brothers who are probably all smarter than I am. I learned a lot from them.” Justice Ruth Bader Ginsburg learned writing from Vladimir Nabokov at Cornell University. Asked by Garner if she had stayed in contact with Nabokov after college, she smiles and said, “Not after he wrote Lolita and he made a huge success and went off to Switzerland to catch butterflies.” Justice David H. Souter refused to talk to Garner. “He just prefers not to go before a camera,” Garner said. Garner’s boisterous conversation with Scalia led the two of them to collaborate on a book that will be published next month, titled Making Your Case: The Art of Persuading Judges. Garner said he has considered publishing the transcripts of his video interviews with the eight justices, too, but if he does, he won’t take royalties. Garner thinks that, taken together, the eight interviews reveal a “composite judicial personality” that places a premium on clear writing, getting to the point quickly and deleting legalese.

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