Words. Be Clear

• Author: Bryan A. Garner
• Pages: 30-31

WORDS

Be Clear

Supreme Court Justice

Wiley B. Rutledge oers

posthumous brief-writing advice

BY BRYAN A. GARNER

Readers of this column are

familiar with my occasionally

interviewing long-dead au-

thors. Another name for it is

active reading. Actually, we do it all the

time—taking an author and interrogat-

ing the text for all the wisdom it might

yield. In this space, I publish only the

most notable of these interviews.

Today’s interviewee is U.S. Supreme

Court Justice Wiley B. Rutledge (1894–

1949), who had broad experience as

a law teacher and jurist. He served as

law dean at both Washington Univer-

sity in St. Louis and the University of

Iowa. In the late 1930s, he supported

President Franklin Delano Roosevelt’s

court-packing plan. In 1939, Roosevelt

appointed him to the U.S. Court of

Appeals for the District of Columbia,

and four years later to the Supreme

Court—where he was known as one of

the more progressive justices. Though

Rutledge isn’t well-known today, he

is often remembered as the justice for

whom John Paul Stevens clerked in the

late 1940s.

In fact, when I interviewed Justice

Stevens in person at the Supreme Court

in February 2007, we had the following

exchange, published by the Scribes Jour-

nal of Legal Writing a few years later:

BAG: Five years before you

clerked for Justice Rutledge, he

wrote [an] article on appellate

brief-writing—which I’ve always

thought was excellent—in which

he argued that it’s important for

briefs to be interesting. Do you

remember that article?

JPS: No, I don’t.

BAG: And did he have his clerks

read that?

JPS: No, he didn’t. I don’t remem-

ber it at all. ... His opinions were

very long. He wrote opinions

which many people thought were

longer than necessary, but it was

part of his feeling about the job—

that you had to be fair to the

lawyers and explain everything.

And he was a very, very thor-

ough workman.

So I decided to look it up and reread

Justice Rutledge’s article—gently inter-

rogating him as I went. “The Appellate

Brief” originally appeared in the April

1942 issue of the ABA Journal.

Do you have any rules for brief-

writing?

Briefs are as varied as the lawyers who

make them and the cases with which

they deal. Consequently, there can be

no rule of thumb for writing them. But

with the variables of author and case,

there are recurring patterns and some

constant elements.

You sometimes invoke Chief Jus-

tice Harlan Stone’s idea that the

purpose of an appeal is to deter-

mine whether “one or the other

of the parties has been ill-used

under the law.” How is that best

done in a brief?

The brief has several functions. Its basic

one is to get to the court the lawyer’s

picture of the facts, analysis of the

issues and application of the law. If it

does this, he wins.

women, along with their talents and

unique perspectives?

I will not accept that in 2022, we

do not have the collective capability to

come up with a new model of working.

Should we just throw up our hands

and say it’s too hard? We are lawyers!

One of our primary roles is to solve

problems. If clients came to us with

this problem, would we tell them it is

impossible?

Is it that we can’t? Or that we won’t?

That we’re unable? Or that we’re

unwilling? Q

Megan Elizabeth Gray is a lawyer

and writer. She is corporate counsel at

Condé Nast in London, where she has

lived since graduating from Cornell

Law School. Last year, she published

Enjoy Your Life: Thoughts for Awak-

ened Daughters from Conscious Moth-

ers, which is her rst book.

This column originally appeared on

ABAJournal.com on Sept. 8. It reects

the opinions of the author and not nec-

essarily the views of the ABA Journal—

or the American Bar Association.

Practice Matters | WORDS

Photo courtesy of Megan Elizabeth Gray; AP Photo

Megan

Elizabeth

Gray

U.S. Supreme

Court Justice

Wiley B. Rutledge

ABA JOURNAL | FEBRUARY–MARCH 2022

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