ISO The Money Quote for Briefs
I’ve spent much of the past three weeks in seclusion, almost exclusively focused on a 75 page response in opposition to two summary judgment motions in a federal civil rights matter that I’ve been handling for close to four years. During the process, I had a chance to read some classic Supreme Court and Circuit court decisions by Justice Harlan and Judge Posner, among others, who write not only with precision, but with panache, who always include a couple of “money quotes,” that pop off the page. And that got me to wondering – why don’t legal writing classes ever teach the art of writing “the money quote?” Here’s what I mean…
The Supreme Court’s recent decision in Georgia v. Randolph has a couple of great “money quotes,” particularly since Chief Justice Roberts drafted the dissent (from what I’ve seen of his writing, Justice Roberts almost always hits a “money quote.”). By way of background, Randolph ruled, in a 5-3 decision that a search is unconstitutional where only one of two occupants grants consent. From the dissent:
Our third-party consent cases have recognized that a person who shares common areas with others “assume[s] the risk that one of their number might permit the common area to be searched.” Matlock, 415 U. S., at 171, n. 7. The majority reminds us, in high tones, that a man’s home is his castle, ante, at 10, but even under the majority’s rule, it is not his castle if he happens to be absent, asleep in the keep, or otherwise engaged when the constable arrives at the gate. Then it is his co-owner’s castle. And, of course, it is not his castle if he wants to consent to entry, but his co-owner objects. Rather than constitutionalize such an arbitrary rule, we should acknowledge that a decision to share a private place, like a decision to share a secret or a confidential document, necessarily entails the risk that those with whom we share may in turn choose to share–for their own protection or for other reasons–with the police.
That’s a money quote – Roberts turns Souter’s imagery of the castle on its head and analogizes the risks of sharing one’s space in a way that anyone can understand. Souter’s decision has a money quote, too though from another case:
We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s home is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,” Miller v. United States, 357 U. S. 301, 307 (1958) (internal quotation marks omitted).
So I got to wondering where these money quotes came from and went and checked the merits briefs for Randolph. They’re fine and would probably get an “A” in any legal writing class. But they’re also dull and serviceable, without the pizazz of the Roberts decision.
Why is there such a disconnect between the pedestrian writing of briefs and the powerful writing of many judicial decisions? Why don’t we teach lawyers how to write those money quotes that make it into the ultimate judicial decision?
And readers, here is my challenge for you. If you have a brief with what you consider to be a “money quote,” send it my way. Extra points if your money quote made it into the judicial decision. I’ll read them and post the best here.
Finally if you’re wondering, my own summary judgment response attempted, but I don’t think hit, a real money quote. I had a terrific theme for my statement of facts, though, and I’m willing to share offline if you’re interested.
Check this month’s issue of the ABA Journal for a similar article on legal writing (and how most legal briefs are boring).
My own experience with legal writing essentially consisted of BIGLAW partners beating out of me any sense of creativity. Why? Because they seemed to follow the mantra “just the facts m’am”, and strongly discouraged any “pride in authorship”. I’m sorry, but if I worked 30-40 hours researching and writing a brief you’d better believe I’m going to take offense at someone dulling it down (or dumbing it down, depending your perspective). Don’t get me wrong — we can all learn something about improving our legal writing — but to take an interesting brief and transform it into a lifeless document that ends up being a chore to read seems to be the real crime in many litigation matters.
Likewise, what’s wrong with pointing out that your opponent’s argument is completely clueless? I understand that the accusation that an argument is “without merit” has been overused by many lawyers, thereby making many judges think the opposite — that it actually has merit. This is why I very rarely used such a phrase (unless, of course, a BIGLAW partner insisted that I do). Personally, I consider the accusation that an argument is “without merit” to be tantamount to accusing opposing counsel of making a frivolous argument, and thereby committing an ethical violation. Simply pointing out the fallacies of an argument, and then using a “money quote” from a famous literary work or famous personality (e.g., Lewis Carol is often used) to seal the deal always seemed to me as a great way to close out a section or a brief. Doing so takes the reader temporarily outside of the legal realm, thereby forcing him or her to consider the legal argument in terms of the real world rather than the hypothetical one of legal rhetoric. Judges do this all the time – why can’t lawyers?
I always enjoyed the research and writing aspects of litigation. Finding that one “gotcha” decision to cite or finding the hole in your opponent’s logic often felt like scoring a basket or getting a first down. After one-too-many BIGLAW partners expressed displeasure at my enthusiastic writing style, it wasn’t fun anymore.
Check this month’s issue of the ABA Journal for a similar article on legal writing (and how most legal briefs are boring).
My own experience with legal writing essentially consisted of BIGLAW partners beating out of me any sense of creativity. Why? Because they seemed to follow the mantra “just the facts m’am”, and strongly discouraged any “pride in authorship”. I’m sorry, but if I worked 30-40 hours researching and writing a brief you’d better believe I’m going to take offense at someone dulling it down (or dumbing it down, depending your perspective). Don’t get me wrong — we can all learn something about improving our legal writing — but to take an interesting brief and transform it into a lifeless document that ends up being a chore to read seems to be the real crime in many litigation matters.
Likewise, what’s wrong with pointing out that your opponent’s argument is completely clueless? I understand that the accusation that an argument is “without merit” has been overused by many lawyers, thereby making many judges think the opposite — that it actually has merit. This is why I very rarely used such a phrase (unless, of course, a BIGLAW partner insisted that I do). Personally, I consider the accusation that an argument is “without merit” to be tantamount to accusing opposing counsel of making a frivolous argument, and thereby committing an ethical violation. Simply pointing out the fallacies of an argument, and then using a “money quote” from a famous literary work or famous personality (e.g., Lewis Carol is often used) to seal the deal always seemed to me as a great way to close out a section or a brief. Doing so takes the reader temporarily outside of the legal realm, thereby forcing him or her to consider the legal argument in terms of the real world rather than the hypothetical one of legal rhetoric. Judges do this all the time – why can’t lawyers?
I always enjoyed the research and writing aspects of litigation. Finding that one “gotcha” decision to cite or finding the hole in your opponent’s logic often felt like scoring a basket or getting a first down. After one-too-many BIGLAW partners expressed displeasure at my enthusiastic writing style, it wasn’t fun anymore.