Justice Scalia on Well-Written Briefs

Slate's blog on legal issues.
April 1 2008 2:44 AM

Justice Scalia on Well-Written Briefs

Like a fair number of other people , I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing.  There's no shortage of insights to be gleaned from these discussions -- particularly from the Chief Justice.  Of all of the interviews, however, Justice Scalia best summarized what's at stake in brief-writing with an anecdote from his D.C. Circuit days (roughly three and a half minutes into his first interview segment ):

Let me say first of all how important lawyers' briefs are.  One of the happiest events of my life was when I was sitting on the Court of Appeals for the D.C. Circuit, we had a lot of administrative law cases, which tended to be long cases with many briefs, and I remember one case we had, involving standards for automobiles.  And there were a lot of intervenors and amici and what-not, and I read brief after brief, and I was really getting pretty punchy.  

And I picked up this one brief, and all of a sudden it really captured my attention: Everything was so felicitously put, it was elegant, it was crisp, you could see where the writer was going.  

And I said, who wrote this brief?   And I turned over the front and it made me so happy to see that it was one of the best lawyers in Washington.  And it made me very happy to know that you can tell the difference, you can really tell the difference.
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(From what I can tell, he's referring to Center for Auto Safety v. Peck , 751 F.2d 1336 (D.C. Cir. 1985).  I won't try to guess which brief was his favorite.)

Brief-writing is the most-enjoyable part of my enjoyable job.  What I wouldn't give to someday write briefs that impress judges as much as the unnamed intervenor's brief impressed then-Judge Scalia.

A Side Note:   Justice Scalia and his interrogator, Bryan Garner, are collaborating on a book on effective advocacy: Making Your Case .