Wednesday, February 14, 2007

Chaining the Muse

We're not fond of court rules that dictate the structure of briefs.

We understand why courts adopt these rules. It's partially for self-preservation; if courts didn't impose page limits on briefs, for example, many litigants would inflict tomes on courts. And some rules make it easier for the court to find certain essential information, such as the requirement that federal appellate briefs contain a jurisdictional statement.

But we suspect that many other rules are desperate efforts to improve the quality of legal writing, and we don't think those rules can work. To the contrary, we think courts will still receive plenty of bad briefs, and the rules will reduce the quality of some briefs that might otherwise be truly exceptional.

Many court rules dictating the form of briefs simply try to force incompetent counsel to include in their submission the topics that concern the court. Some court rules require, for example, that a brief begin with a "summary of argument." A good lawyer, however, is likely to have a few sexy explanatory sentences that would be a better way to start the brief than with a pure summary of the legal argument. Some court rules require a movant to isolate the controlling authority for the relief sought. That's a tough row to hoe for a litigant trying to make new law. Some court rules require separate sections titled "statement of the case" and "statement of the facts," even though a gifted writer could almost surely merge the two with grace. And so on.

We doubt that court rules can make bad lawyers good. A disorganized writer is just as capable of producing a rambling, formless screed within these rules as without. Bounded by the rules, the screed will be broken up by subheadings; unbounded, it may not be. Either way, the screed is the screed, the writing is poor, and the court will suffer.

Worse than the rules' inability to improve bad writing is their pernicious effect on good writing. An able writer knows that the best approach to a complex written communication will vary with the nature of the communication. Not all histories are written in strict chronological order. Not all novels follow the same organizational structure. Not all poetry rhymes. And not all briefs are at their most persuasive, or even their most comprehensible, when chopped up and arranged in precisely the way the various rules mandate.

Judges who are good writers know this. Judges Easterbrook and Posner, both of the Seventh Circuit, are among those who are legendary for the clarity and punch of their opinions. Whatever one thinks of the merits of any given decision, it is impossible to come away from a Posner or Easterbrook opinion without deep admiration for the brilliance of the writing. And both Judge Easterbrook and Judge Posner routinely violate, often flagrantly, the opinion-writing rules laid down at judges' schools about how to structure decisions. Recommendations to judges about how to structure their opinions can help the uncertain writer accomplish his or her goals; fine writers can often accomplish them much better by abandoning the recommendations.

Why, then, are lawyers' briefs chained to a Procrustean structure? We understand the pervasive despair of courts that find themselves awash in badly-written briefs and cling to structural rules as a life-preserver. But their hope is misplaced for two reasons.

First, rule-imposed structures will not make bad writing good. Period.

Second, rule-imposed structures can make good writing worse. A skillful brief-writer left unfettered might well produce a better brief than the same writer bound into a rigid structure. Procrustes' bed did not fit all travelers, and Procrustes' rack and sword badly hurt some of them.

We know that courts will never eliminate the constraints they place on briefs, and perhaps that refusal makes good sense. But courts should recognize that those rules constrain excellence as surely as they constrain mediocrity, and we must all live with the results.

1 comment:

Mark E. Wojcik said...

Thank you for your thoughtful commentary on the relationship between court rules and good legal writing. I know that many legal writing professors will be talking to their classes about this.

Prof. Mark Wojcik
The John Marshall Law School, Chicago