Recently, Associate Supreme Court Justice Elena Kagan talked with lexicographer and lawyer Bryan Garner about what it takes to be a good legal writer. Her practical advice relates not only to those writing in a legal context but to anyone who wants to improve their writing skills.
“There’s not some special magic to good legal writing. To be a good legal writer, honestly, is to know the law and to be a good writer,” Kagan says, perhaps basing her advice on her experience as a professor at Harvard Law School and University of Chicago Law School.
Here’s a summary of her writing advice:
Be a good reader and don’t skim
“I don’t think I’ve learned the art of skimming. I really do start at the beginning of a brief and go through the end and read everything in between.”
Like Stephen King and Ray Bradbury, Kagan believes that to be a good writer you need to be a good reader. Reading carefully gives you a thorough understanding of the material and, according to Kagan, you owe that much to the writer regardless of how the text has been written.
Write so everyone can understand you
“A hundred years ago, [Supreme Court justices] were speaking a very specialised, professional language. They didn’t really care whether that language was understood by anyone outside the case, even by other lawyers, let alone non-lawyers… Now, we are very concerned about speaking to the American public. We want the American public to understand what we’re doing, and why.”
Writing so anyone who reads your text understands it, no matter their knowledge of the topic, ensures clarity. You also won’t have frustrated readers.
But don’t completely dumb down your writing
“What I try to do is write so that a non-lawyer could read it. But not any non-lawyer. I don’t want to dumb it down too much, and I don’t want to explain things that really don’t need to be explained. So I guess I have in mind the reader of the New Yorker, or something like that. I have in mind a reader, who has some education, or some intelligence.”
It can be a difficult balancing act, especially if you’re writing about a complicated topic. There’s no need to use difficult words or complex sentence structures just to show off your writing ability, but it’s fine to assume your readers are educated even if they’re not experts in the subject.
Explain your reasoning
“Part of what we do is show the American public how we reason about cases. It’s not just ‘here’s the question, here’s the answer, and now we’re done.'”
Kagan is frustrated by short court opinions that just deliver judges’ decisions without the reasoning behind them. It’s important to explain how you reached your conclusions for your readers to take your argument seriously.
Consider other people’s viewpoints
“I have a very long, extensive writing process. It actually starts for me when I get a draft of an opinion from a clerk… I actually prefer to see a draft from another person. It helps me start thinking about the case from an argument. It gives me a springboard, to think about a case, to see how another person writes it down.”
While the final copy is “98%” Kagan’s own words, she finds it helpful to read the argument from someone else’s viewpoint. Doing this not only makes it easier to write than starting from scratch, but broadens your own viewpoint.
Listen to the first part of Kagan’s interview here: