War of the Words

Sometimes even collaborators disagree. Not easy when one is Antonin Scalia of the U.S. Supreme Court.

, The American Lawyer


Position One: Contractions, being idiomatic, help humanize legal briefs, which typically confuse starchy formality with propriety. Contractions are the enemy of legalese and the friend of a flowing, assured style. But like anything else, they're best used in moderation.

Position Two: You do not wear Bermuda shorts into court, you do not call judges by their first names, and you should not use contractions. Using contractions is bound to irritate some judges--which can only hurt your clients.

Two starkly contrasting, irreconcilable positions. I'm the advocate behind Position One. I'm a grammarian and author of, among other books, Garner's Modern American Usage. I work in the tradition of H.W. Fowler and Eric Partridge. I am also, as the late David Foster Wallace dubbed me in Harper's Magazine in 2001, a SNOOT--or a Syntax Nudnik Of Our Time.

But I am also a lawyer (University of Texas School of Law, 1981), and my writing projects have always reflected that career choice. My latest project has brought me to work with perhaps the most intimidating and perceptive collaborator that any writer on usage, particularly legal usage, could hope to have--Justice Antonin Scalia of the U.S. Supreme Court, the advocate behind Position Two.

In 2008, we published a book on advocacy, Making Your Case: The Art of Persuading Judges. But even though our views on legal usage are now fixed between hard covers, we continue to clash over certain matters. We have turned these agreeable disagreements into something of a road show. In recent months, Justice Scalia and I have taken the stage in New York and Washington, D.C., to discuss the book and to debate our positions. We'll be doing it again soon in Los Angeles and Austin.

My relationship with Justice Scalia began in October 2006. I had set out to interview each of the nine justices on the subjects of advocacy, writing, and language, and Justice Scalia was the first to accept my invitation. (That interview, together with all my other Supreme Court interviews, can be seen in full at lawprose.org.) He was at once urbane, exuberant, and provocative. And his views on rhetoric were strikingly aligned with my own. He agreed, for example, that judges are impatient to get the goods ("I want the message up front, and I want it fast"), and that the statement of the issues is the very heart of a brief. He also declared himself a fellow SNOOT.

On the plane back to Dallas, it occurred to me that it would be fun to team up with Justice Scalia, a natural rhetorician, on a book about rhetoric. I offered, and about two weeks later, he accepted. The writing went well. We'd each draft the same section simultaneously, and then it fell on me to reconcile our drafts. This proved fairly easy--for the most part.

But occasionally we couldn't agree. For example, everywhere that Justice Scalia had written "do not," I'd made it "don't." And when I received his edits back on the manuscript, I'd find that he had restored every "do not."

After this happened a few times on other questions of style, I wrote a note at one point suggesting that "we insert here a footnote stating that one of the authors believes that all citations should be in footnotes." Trying to be diplomatic, I added, "Nino: I guess we're going to have to hash this out in the end." His reply came in the margin next to that suggestion, scrawled in all caps. It was a bovine expletive.

Ultimately, we never could agree on four big style issues: contractions, substantive footnotes, citational footnotes, and sexist language. For the purposes of the book, we thought it best to honestly acknowledge our disagreements and to lay out the rationale for each position. But these disagreements have never been resolved, although they are carried out, for the most part, diplomatically. What follows is a summary of our arguments, as set forth in our book and as we continue to elucidate them in our debates:

1. CONTRACTIONS. For the book, Justice Scalia finally acquiesced to my use of contractions-in moderation-throughout the work. But we added this note toward the end of the preface: "To lighten the journey, we have adopted a conversational style that includes occasional contractions and remarks more flippant or colloquial than one would normally encounter in legal commentary. The reader who feels that some of these indulgences fall short of the formality and sobriety expected of a jurist should attribute all of them to the other author, and assume that they have been included under protest."

2. NO SUBSTANTIVE FOOTNOTES.
The Garner view: If a point is genuinely substantive and thus worth the reader's full attention, it deserves to be incorporated into the body of the text, not interred in a footnote. Judges tend not to read footnoted discussions anyway. (Justice Scalia admits that he doesn't.) Substantive footnotes are a confession of lazy organization, not to mention indifference to the actual reading habits of most readers.

The Scalia view: The solicitor general's office, which writes the best briefs in the country, uses substantive footnotes. So ipso facto, substantive footnotes must occasionally be useful and necessary, even if they are generally overdone. Justice Scalia agrees with Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit, formerly of the SG's office, who says there are really two briefs in any one submission: the one for the judges (in text) and the one for law clerks (in footnotes). So although substantive footnotes are rarely useful, they do not merit an outright ban.

3. CITATIONAL FOOTNOTES.
The Garner view: Why, in midsentence, would you want to derail your argument-and your reader-with clutter like "67 Md. App. 727, 737, 509 A.2d 719, 724, cert. denied, 307 Md. 433, 514 A.2d 1211 (1986)"? Essential information, yes, but its proper place is in a footnote. With an important precedent, where readers will immediately want to know the court, the case, and the year of decision, weave that information into your textual discussion: "Three years ago in Flom v. Baumgartner, this Court held that . . . ." For less important precedents, park the full citations in footnotes. Many good writers are doing this already, jettisoning the old typewriter practice and embracing the benefits that computers make possible.

The Scalia view: It is not possible to follow this practice for "important citations." Readers are bound to look down when they see a superscript. I guarantee that you will bother some judges by following Garner's suggestion, so best not to chance it.

4. SEXIST LANGUAGE. The Garner view: More and more these days, sexist language is offensive to men and women alike, and understandably so. The most common offender is "he" standing in for both genders. Yes, it's handy, and yes, it carries the authority of a convention, but it's a new day, and the convention is outmoded. Fortunately, as we've shown in our book, with a little ingenuity one can develop invisible ways for avoiding it and similar problems-ways that don't call attention to themselves. Not the pseudo-solutions like "s/he," because they're clunky and distracting. No one talks like that, so why write like that? But it's easy to change, for example, a statement that "rules let a plaintiff collect attorneys' fees only if he establishes that he prevailed at trial" to "rules let plaintiffs collect attorneys' fees only if they establish that they prevailed at trial."

The Scalia view: Come on. "He" has been understood to include "she" for hundreds of years, and it's a convenient shorthand. As for "invisibility," anyone can see the second-best circumlocutions that Garner has perpetrated while trying to be a neutralizer. Not good.

Justice Scalia is known to be a man of fierce conviction, and he proved it time and again as we wrote the book. He would hit hard on a point just to see what I would come back with. But when I had a great return, he would often acknowledge it and accede to it. At one point, as I was making a passage gender-neutral, he said in exasperation, "You're doing the same thing to this book that Ruth does to my opinions!" I responded, "Well, it's a good thing she's there!"

Justice Scalia says he learned a few things from working with me, perhaps mostly about book-writing. From him, I learned the true meaning of the word painstaking (we wrangled for ten days about how the index entries should read) and the value of minimalism (his mantra: "Whatever doesn't help, hurts.").

What I couldn't learn from him, but witnessed several times, was how he'd gaze at a certain spot on his ceiling for minutes on end before delivering a brainchild that would result in some great new passage in the manuscript. I wish I had a spot like that on my ceiling.

Bryan A. Garner (bgarner@lawprose.org), is the editor in chief of Black's Law Dictionary and the author of many books on legal writing, including The Elements of Legal Style. His latest book is Garner on Language and Writing.