Write On, 18 VTBJ, Fall 2018-#30

AuthorGreg Johnson, Esq. is Professor of Law and Director of Legal Writing at Vermont Law School.
PositionVol. 44 3 Pg. 30


No. Vol. 44 No. 3 Pg. 30

Vermont Bar Journal

Fall, 2018

Assessing the Legal Writing Style of Brett Kavanaugh

Greg Johnson, Esq. is Professor of Law and Director of Legal Writing at Vermont Law School.

Last fall, I wrote a column critiquing the legal writing style of Neil Gorsuch, President Trump’s first appointee to the United States Supreme Court. This fall, I will critique the writing style of Brett Kavanaugh, President Trump’s second appointee to the Court. Kavanaugh has been a judge on the D.C. Circuit Court of Appeals for twelve years. In that time, he has authored 307 opinions (including concurrences and dissents).1 From this vast body of evidence, I have selected about thirty opinions that Judge Kavanaugh (in his statement to the Senate) and others have identified as some of the more noteworthy opinions in his time on the D.C. Circuit. I give Judge Kavanaugh’s legal writing style high marks. He follows many of the key principles of plain English and persuasive writing. His opinions often begin with powerful, attention-getting introductions. He writes short sentences in the active voice. He uses transitions effectively. His sentences display strong parallel structure. His paragraphs abide by the “unity” principle of good paragraphing by sticking to one subject, and they are rarely too long.

Judge Kavanaugh writes his opinions in a matter-of-fact, no-nonsense way. I prefer Judge Kavanaugh’s writing style to that of Justice Gorsuch. Those who read my column last fall know that I criticized Justice Gorsuch for some bad writing habits (excessive alliterations, relentless contractions, conjunctions at the start of sentences, use of the second person, sentence fragments, etc.). Judge Kavanaugh avoids many (though not all) of these problems. In the best legal writing, the reader only sees the writer’s argument, not the writer. Too often, Justice Gorsuch’s showy writing draws attention to him, not his argument. Not so for Judge Kavanaugh—his writing persuades by being logical, concise, and temperate. This column will explain why I think Judge Kavanaugh is an excellent legal writer.

I. Effective Writing Habits

A. Powerful Openings

Judge Kavanaugh writes powerful openings that capture the reader’s attention and succinctly describe the issue in the case. The opening paragraph or two of a brief (or, in Judge Kavanaugh’s case, a judicial opinion) is valuable real estate. The introduction to your brief should “orient readers and frame the dispute.”2 A judge reading your brief should know “within thirty seconds” what the dispute is about and why your client should prevail.3 Bryan Garner, a leading expert on legal writing, recommends always starting with a preliminary statement “even if the rules don’t call for it. Just put it there—as far up front as you can.”4 Judge Kavanaugh embraces this advice. Here are a few openings from his opinions and dissents. As you read them, notice how he is able to summarize even complex cases in just a few sentences. Notice also how Judge Kavanaugh establishes good flow from one sentence to the next.

Kahl v. Bureau of National Affairs

The First Amendment guarantees freedom of speech and freedom of the press. Costly and time-consuming defamation litigation can threaten those essential freedoms. To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits. In this case, we follow that Supreme Court directive.5

Judge Kavanaugh develops flow and clear logical persuasion in this opening paragraph by using “substantive” transitions effectively. We frequently use explicit transition words (however, because, subsequently, conversely, although, etc.) to link sentences, but using the actual words of one sentence (or their paraphrase) in the next can help bind the sentences together. Grammarians call this type of transition a “substantive” transition. Here, Judge Kavanaugh binds the frst and second sentences together with the phrase First Amendment freedoms. The subtle shift from, “The First Amendment guarantees freedom of speech and freedom of the press” to “To preserve First Amendment freedoms” makes the transition lively and not plodding. The same is true for the substantive link between the second and third sentences (“directed” to “directive”).

Substantive transitions are also called “dovetail” transitions. The metaphor is apt. Professor Megan McAlpin, author of Beyond the First Draft: Editing Strategies for Powerful Legal Writing, explains dovetail transitions this way: “Carpenters use dovetail joints to fasten wood without using nails or screws. They simply cut the two parts in a way that allows them to ft securely and seamlessly together. So, if the transition words are the nails that you see, then substantive transitions are the seamless fasteners that hold your writing together invisibly.”6 To me, the artful use of substantive transitions is persuasive writing at its finest. Paragraphs are held together without the need for explicit transition words. Substantive transitions improve reader comprehension because the reader sees an “old” thought in the new sentence; thus the move to the “new” thought is less abrupt and is linked to something the reader has seen before. When done well, substantive transitions may be nearly invisible, but if you look for them in Judge Kavanaugh’s writing, you will see he uses them all the time.

El-Shifa Pharmaceutical Industries Company v. United States

In August 1998, President Clinton ordered the U.S. military to bomb both the El-Shifa factory in Sudan and al Qaeda training camps in Afghanistan. The goals were to kill leaders of al Qaeda and to destroy al Qaeda infrastructure. President Clinton explained to Congress and the American people that he ordered the bombings in furtherance of the Nation’s “inherent right of self-defense” in the wake of al Qaeda attacks on U.S. property and personnel in Kenya and Tanzania. As authority for the bombings, President Clinton cited his Commander-in-Chief power under Article II of the Constitution.

Plaintiffs El-Shifa Pharmaceutical Industries Company and its owner, Salah Idris, allege that their factory in Sudan was wrongly destroyed in the bombings and that they were reputationally harmed by later Executive Branch statements linking them to Osama bin Laden. As relevant here, they have brought a federal defamation claim and an Alien tort Statute claim against the United States.7

This excerpt is the opening of Judge Kavanaugh’s concurrence. The majority opinion starts this way: “The owners of a Sudanese pharmaceutical plant sued the United States for unjustifiably destroying the plant, failing to compensate them for its destruction, and defaming them by asserting they had ties to Osama bin Laden.”8 I like this opening too, and I wrote many openings like it as a law clerk and lawyer. Yet Judge Kavanaugh’s opening has the visceral power of dramatic storytelling. It brings us back in time to real events. By putting the focus squarely on President Clinton, Judge Kavanaugh’s opening reminds us that the strategy of dropping a few bombs after each terrorist attack was not going to stop bin Laden. That was my reaction, but even if you did not see this in Judge Kavanaugh’s opening, I trust you agree it is a compelling narrative start to an opinion.

United States v. Papagno

Victor Papagno had a...

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