Words. Legal writing on the clock

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

WORDS

Legal

writing on

the clock

Part two of a three-part series

BY BRYAN A. GARNER

Recall the situation: It’s the

rst day of your new job as

an assistant attorney general

in your state. You’re an

experienced litigator, and you put in

for the position touting your skill as a

writer. You were told that it would be

a demanding job, but you gured that

your experience in private practice has

been as demanding as anything the new

position might present.

It’s 9 a.m. You’ve been handed three

case les and told that you must le

three court papers by the end of the

day: a motion for judgment on the

pleadings, a motion to strike expert

testimony in federal court and a motion

to consolidate two proceedings in the

state supreme court. No extensions are

possible. Like a contestant on the Great

British Baking Show, you’re under pres-

sure to whip up something spectacular

in short—very short—order.

Because you’re a devotee of good

legal writing, you know what you’re

looking for. You have a practiced eye.

For each ling, you must discover, in

short order, the concrete dispositive

point or points to be decided by the

court, together with the strongest ratio-

nales for its decision.

And because you’re an admirer of

Aristotle, you know that every argu-

ment is reducible to a syllogism. There

will be a major premise (a legal rule)

and a minor premise (a crucial fact

that plays into the legal rule). From the

interrelationship of those premises, the

conclusion should be clear. Meanwhile,

though, you might uncover a counterar-

gument that needs demolishing.

The major premise for your argu-

ments will derive from one of three

sources: a legislative text or court rule,

a judicial precedent or a commonsense

policy of some kind. You’ll be trying

to discover a major premise for each

argument and t it in nicely with a mi-

nor premise. If you can’t discover those

things, you’re sunk. But fortunately,

your experience guides you to identify

precisely what kinds of things you’re

looking for.

The motion for judgment

on the pleadings

The rst case involves the renovation

of 10 rooms in a state ofce building. A

subcontractor (Olson) not paid by the

general contractor has placed a lien on

his work and led claims against both

the contractor and the state.

You soon realize that a statute

provides that the subcontractor’s sole

remedy lies against the contractor’s pay-

ment bond. The state is immune from

suit. You quickly verify that a payment

bond, in fact, protects the subcontrac-

tor. So you draft two propositional

headings: I. The state is statutorily im-

mune from suit. II. Olson’s sole recourse

is against the general contractor’s

payment bond.

You’ve made this look easy. In fact,

there’s a lot of other noise emanating

from the les, but that’s all extraneous

and irrelevant to your core points.

And you’re ahead of schedule: It’s

only 9:50 a.m.! Time to look at the

expert-witness issue.

Photo illustration by Brenan Sharp/ABA Journal

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