Write On, 20 VTBJ, Fall 2020-#24

• Author: By Brian Porto, Esq.
• Position: Vol. 46 3 Pg. 24

WRITE ON

Vol. 46 No. 3 Pg. 24

Vermont Bar Journal

Fall, 2020

Past Tense: The Legal Prose of Justice Robert Larrow

By Brian Porto, Esq.

Introduction

In the Winter 2019 issue, Paul Gillies introduced readers to the prose, politics, and public career of Robert Larrow, who served on the Vermont Superior Court from 1966 until 1974 and on the Vermont Supreme Court from 1974 until 1981.^[1] He was the last justice to serve on the Supreme Court after being elected by the General Assembly.^[2] Soon after Larrow’s election, Vermont moved to its current system of choosing justices: gubernatorial nomination followed by senate confirmation.^[3]

But Larrow’s service on the Vermont Supreme Court was more interesting than the circumstances by which he joined the Court. Paul Gillies, in the concluding paragraph of his article, wrote: Robert Larrow was a brilliant jurist. He wrote crisp, articulate, strong decisions, and he held strong opinions. Clearly his political principles influenced his legal decisions, but they were not always revealed in his writings. Still, he could not hide his character behind his robe.^[4]

Drawing on those words, this article will examine Justice Larrow’s legacy as a legal writer. Before assessing that legacy, though, one must identify the standard on which the assessment will be based. A brief discussion of effective legal writing follows.

Effective Legal Writing: A Short Primer

The “twin pillars” of effective nonfiction writing—including legal writing—are clarity and brevity.^[5] To achieve both goals, lawyers should shun wordy, vacuous expressions such as “it is agreed that” and “herein set forth,” which add words, but not meaning, to a sentence. ^[6] Similarly, lawyers should omit “It is significant that …, “It is important to remember that …, “It should be noted that …,” and “It is well established that …” from sentences because these expressions not only add words without adding meaning, but sometimes obscure a sentence’s intended meaning.^[7]

Clarity and brevity require the omission of wordy idioms, too, such as “the fact that,” “despite the fact that,” “at this point in time,” “the question as to whether,” and “pursuant to.” The writer should substitute “although” for “despite the fact that,” “now” for “at this point in time,” “the question whether” or just “whether” for “the question as to whether,” and “under” or “by” for “pursuant to.”^[8] Replace “the fact that” with the word or words for which the bulky idiom is a poor substitute. If the first draft stated: “The fact that she had died spawned litigation over her will,” the subject of the sentence is the decedent’s death. The redrafted sentence should state: “The decedent’s death spawned litigation over her will.”^[9]

Lawyers should omit fancy words, too, especially when simple ones will make the point equally well (e.g., use instead of utilize, house instead of residence, pay instead of remuneration). And they should reject intensifiers, such as “clearly” and “certainly,” which do not clarify the unclear; like the other word crutches that lawyers use, intensifiers add words, but not meaning, to a sentence.^[10]

But clarity and brevity are not merely functions of simple words and concise sentences; they are also the happy results of a well-constructed legal document. Such a document “leads from the top”; the first paragraph identifies the key background facts, the issue to be decided, and the writer’s view about the proper resolution of the case.^[11] The first paragraph of each section should make clear the author’s conclusion about the subject of that section.^[12] Similarly, the first sentence in each paragraph should summarize the author’s conclusion about the subject of that paragraph, meaning that each paragraph should proceed from the general to the specific, with the last sentence stating the most narrowly focused idea or information in the sentence.^[13] And the author should not “tread water” by using words that fail to advance the argument, making a follow-up sentence necessary.^[14] For example the first sentence below is unnecessary.

This court has had to deal with the issue of a child’s suit for parental consortium. In a recent case, this court has held that the child has no cause of action.^[15]

A better alternative is one sentence that states: “Recently, this court has held that a child has no cause of action for loss of parental consortium.”^[16] Careful editing is the key to paring this thought down from two sentences to one.

A well-constructed legal document is fundamentally sound at the paragraph level as well as at the sentence level. Paragraphs should be less than a page long, and sentences should vary in length to inject an engaging rhythm into the writing, but they should not exceed twenty-five words.^[17] The character in the sentence (e.g., Judge Jones, the defendant, or the Ways and Means Committee) should be the subject, and the verb should describe what the character did, does, or should do.^[18] The author should use the active voice, following a subject-verb-object sequence that explains who did what to whom.^[19] For example, write that the Ways and Means Committee amended the tax code, not that the tax code was amended by the Ways and Means Committee.^[20]

Last, but not least, effective legal writing steers clear of “nominalizations,” which convert assertive verbs to hesitant nouns, draining the punch and persuasiveness from legal writing. So “contribute,” do not “make a contribution”; “decide,” do not “make a decision; and “indemnify” someone, do not “make a provision for indemnification.”^[21]

Legal writing need not be dull, though. Judicious use of several rhetorical techniques can help lawyers to produce documents that are not only clear and concise, but also interesting and persuasive. One such technique is vivid imagery—what the ancient Greeks who invented rhetoric called energeia—which can enliven colorless language.^[22] For example, in a statement of facts in a drunk-driving case, a prosecutor could write: “On his way out the door, Smith staggered against a serving table, knocking a bowl to the foor.”^[23] But the following, more vivid description, would suggest intoxication more dramatically: “On his way out the door, Smith staggered against a serving table, knocking a bowl of guacamole dip to the foor and splattering guacamole on the white shag carpet.”^[24]

Like vivid imagery, “figures of speech” can add drama and emphasis to a written text. Among the most familiar figures of speech are metaphors and similes. Rhetorical cousins, they nevertheless differ in that metaphors make implicit comparisons, whereas similes use “like” or “as” to make explicit comparisons.^[25] To use a simple example, “Bob is a pit bull in court” is a metaphor because the comparison between Bob and the pit bull is implicit, whereas “Bob acts like a pit bull in court” is a simile because it uses “like” to make the comparison explicit.

Unlike metaphors and similes, which enhance language by assigning unfamiliar meanings to familiar words, other figures of speech rearrange the order in which words are customarily used. One familiar example is “parallelism,” which features a similar structure in a pair or a series of related words, phrases, or clauses.^[26] It fosters word economy while achieving a pleasing cadence that aids reader comprehension. An example is: “Attorney Smith spent Thursday speaking to a client, writing a memo, and attending an afternoon seminar.”^[27]

A close relative of parallelism is “antithesis, which juxtaposes contrasting ideas, often in parallel structure.”^[28] The following sentence illustrates antithesis: “The patent system rewards those who can and do, not those who can but don’t.”^[29] The clauses “those who can and do” and “those who can but don’t” exhibit antithesis because they present a direct contrast by juxtaposing a word and its opposite twice in quick succession. “The juxtaposition of opposites makes the sentence above more memorable than if it merely stated that ‘the patent system rewards action.’”^[30]

Thus, clarity and brevity are the key ingredients of effective legal writing, but rhetorical techniques, used sparingly, can add spice to ordinary prose, enhancing comprehension and persuasion. The remaining discussion will consider the writings of Justice Larrow according to these criteria.

Justice Larrow as a Writer

Majority Opinions

Robert Larrow wrote more than 250 opinions in his seven years on the Court.^[31] He often wrote majority opinions about workers’ compensation, municipal law—including zoning—and unemployment compensation, reflecting his professional background, especially his nineteen years as the City Attorney for Burlington.^[32] Gilbert v. Town of Brookfeld illustrates the strengths and the weaknesses of Justice Larrow’s writing.^[33] Three Brookfeld residents, who owned property on two highways, petitioned the Orange Superior Court to require the Town to reclassify the roads from Class Four to Class Three. The trial court, concluding that the Town had used discriminatory standards to classify the two roads, ordered their reclassification to Class Three, requiring the Town to maintain them in the winter.

Larrow’s majority opinion provided this information and more within its first four paragraphs. Curiously, though, it waited until the fifth paragraph to state the issue at hand: “whether the [property owners] can get the Town to keep their roads open in winter.”^[34] This arrangement conflicts with the earlier suggestion to “lead from the top” by stating the issue at hand in the first paragraph ^[35] and with the idea that the reader should know “within thirty seconds” the nature of the dispute.^[36]

To be sure, Justice Larrow could encapsulate an issue by...