ERNEST HEMINGWAY ON APPELLATE LEGAL WRITING

 

This is the third in our series of occasional interviews with some of the great figures in history, to examine their thoughts on appellate advocacy. Earlier features have included conversations with Sun Tzu and Cicero .

Ernest Hemingway (1899-1961) revolutionized American writing with his sparse, powerful style, and is probably the most influential American writer since Walt Whitman. Discovering an interest in writing while in high school, he became a reporter and, after being injured in World War I, wrote short stories and novels.

Encyclopedia Britannica describes Hemingway’s writing style in these terms:

“He wished to strip his own use of language of inessentials, ridding it of all traces of verbosity, embellishment, and sentimentality. In striving to be as objective and honest as possible, Hemingway hit upon the device of describing a series of actions using short, simple sentences from which all comment or emotional rhetoric have been eliminated. These sentences are composed largely of nouns and verbs, have few adjectives and adverbs, and rely on repetition and rhythm for much of their effect.”

Were you ever an attorney?

[Snort!] Not even close. I’ve been called a lot of things, but no one ever accused me of being a lawyer.

It wasn’t an accusation; I just thought that since the principal audience for this story will be lawyers, they should know of any connection you may have had with the legal profession.

Well, I got divorced a lot, but I sense that’s not the sort of connection you have in mind. What I am is a writer; I started out as a journalist, and gradually became a novelist. Those are pretty much the only professions I have known.

Have you read enough legal writing to be able to offer some advice on that topic?

Plenty, at least recently.

What do you think?

It’s clear to me that it could use an overhaul. Much modern legal writing doesn’t deserve the adjective modern. Many of today’s lawyers are still writing in the first half of the Nineteenth Century.

Well, let’s talk about that. What, specifically, about appellate briefwriting bothers you?

Happily, none of it bothers me too much; if I don’t like what I’m reading, I can just throw the damned thing away. I do feel sorry for the poor judges and justices who have to read all the way through it.

Okay; what bothers them?

There are a number of things. For one, many appellate writers forget that they’re writing to a reader, and that that reader is a human being. Humans prefer to read something that’s interesting, not just to receive an information dump. But you could go to any appellate court in the land, read a few briefs, and see what I mean. Information needs to be communicated, not just sent. Communication involves more than just the transmission of paper and ink, or nowadays, electrons. You’re trying to convey an idea.

What’s wrong with, as you call it, an information dump? These appellate jurists are smart, and they have law clerks and staff attorneys to help them digest the arguments in briefs. Are you saying they aren’t smart enough to do that?

I’m saying they shouldn’t have to do it. Look, if you were trying to show someone what a particularly beautiful sunset looked like, would you show them a photograph of it, or would you give them a jigsaw puzzle and invite them to put the puzzle together so they can see?

I can see that the jigsaw puzzle would take a lot more time.

And time is something these guys don’t have. Take your own state Supreme Court, for instance; those justices read somewhere between five hundred and a thousand pages per day. Do you think they’ve got time to take all the pieces of a legal puzzle – facts, standard of review, statutes, caselaw — and rearrange them so they make sense? A good legal writer does that for his audience, so the reader doesn’t have to dig for hidden meaning.

Souds like a recipe for writing a popular novel.

Sometimes, although novelists often weave deeper meaning into their work that requires reflection. Oh, the justices will reflect on a brief, of course, but the key points should be set forth with clarity and as much simplicity as you can muster.

How did your writing style fit that pattern?

Probably somewhere in between; I tried to craft simple phrases and tight prose, but there was usually a subtext in my stories that might not have been apparent from a first reading.

Is there a popular novelist whose writing style approximates that recipe?

I think Louis L’Amour probably fits in that category, although he might rebel at the idea of being called a novelist. He thought of himself as a storyteller. In his stories, the good guys were good and the bad guys were bad, and you generally had no difficulty in telling who was on which side. A lawyer could do a lot worse.

Are you saying that today’s lawyers, writing for an appellate court, should emulate a writer of cowboy books?

Don’t laugh, boy; it’s not such a farfetched idea. There are major differences, of course, since he was writing fiction, although a lot of it was based on pure historical and geographic facts. But think about it this way – he got to the point quickly, was eminently readable, and almost always conveyed his ideas in relatively few words.

Okay, but that’s not likely to be considered conventional legal writing . . .

You’re %#@^*&!! right, it isn’t.

Ummm, . . . we try to keep the language clean on this web site . . .

Look, you picked me to interview. If you wanted polite, genteel, flowery prose, you could have interviewed Jane Austen. This is the way I am.

Well, I guess we can continue. But now that you’ve mentioned her, what about Austen’s writing style? Can that work for appellate briefs?

If you’re writing to Chief Justices John Marshall or Roger Taney, maybe; they all lived in the early Nineteenth Century. But many lawyers have read this kind of writing, starting with judicial opinions they see in law school, and they figure that’s the way lawyers are supposed to talk. That’s more than a century behind the times. It’s the same thing with Austen. In one of her novels, one character declares his love for another by saying, “In vain have I struggled; it will not do. My feelings will not be repressed. You must allow me to tell you how ardently I admire and love you.” C’mon; who talks like that nowadays?

No one, I guess.

Wrong; lawyers do, when they write ponderous briefs with stilted language and long, archaic sentence phrasing. They clog briefs with string citations and long footnotes. They use lots of Latin. They –

Latin? What’s wrong with that? There are a number of legal phrases that are well-ingrained in legal writing.

Yes, and in many of those cases, it’s okay to use the Latin term. Res judicata, for example, is perfectly understandable to anyone with a legal education, no matter how recent. Also, some Latin words and abbreviations have become standard English, such as etc. But lawyers should resist the temptation to throw in some Latin term because they think the words will sound more imposing in a dead language.

What are some examples of Latin phrases that lawyers should avoid?

Well, inter alia, for one. Just say “among other things.” Mutatis mutandis, which just means, “as it changes over time.” In pari materia, mens rea, things like that.

Is there an instance in which it’s better to use Latin than English?

Only if you’re arguing your appeal in Latin America.

But they don’t speak Latin there; they speak –

It was a joke. The rule of thumb is that if there is a satisfactory and serviceable English phrase for what you’re trying to say, speak English.

Let’s tackle the subject of length. How long should an appellate brief be?

A hell of a lot shorter than it usually is. Your appellate rule books generally specify page limits, and those are, in almost all cases, more than ample for the cause. But some lawyers regard a limit as a target; if they’ve got 35 pages to use, they are determined to use ‘em all, since they’ll have that much of an opportunity to “persuade.” After all, what lawyer wants to leave a potentially winning argument, or issue, or case citation, out of a brief? You can get sued for that, you know.

You’re not exactly convincing me that shorter is better; you’re telling me that longer is safer, at least for the attorney.

It’s true that no lawyer ever got sued for including too many arguments or for filing too long a brief. But the goal is to win the case, and longer is NOT more persuasive, particularly when your audience has 15 other cases after this one, all to be read and analyzed that same day.

Is this a mainstream view, or are you something of a maverick here?

Depends on whether you’re a Jane Austen fan. Take my pal Sam Clemens – he never could stand Austen’s writing. He wrote a hilarious essay in which he criticized Fenimore Cooper for some of the very things you’ll see in some appellate briefs. He even made a list of “rules governing literary art in domain of romantic fiction,” and many of those apply to your legal writing problem. Hang on; let me get my copy and read some to you . . . Ah. Here are just the last seven, the ones he calls the “little ones” among the rules. Is it okay if I read them to you?

Sure.

He writes, “In addition to these large rules, there are some little ones. These require that the author shall:

12. Say what he is proposing to say, not merely come near it.

13. Use the right word, not its second cousin.

14. Eschew surplusage.

15. Not omit necessary details.

16. Avoid slovenliness of form.

17. Use good grammar.

18. Employ a simple and straightforward style.”

“Eschew surplusage.” Does it get any better than that?

But one of those was, “Not omit necessary details.” How’s a lawyer supposed to separate the necessary from the, well, . . . surplusage?

Good judgment. He needs to figure out just what the appellate court needs to analyze the case, then say that, and no more. I guarantee you, if your readers do nothing more than apply these seven “little” rules to their briefs, your judges and justices will be a lot happier.


The reference above to “rules governing literary art in domain of romantic fiction” is taken from Mark Twain’s essay, “Fenimore Cooper’s Literary Offenses,” which may be read in its entirety here