Three Legal Writing Lessons from Gorsuch’ s First Opinion
By Tammy R. P. Oltz
“ Disruptive dinnertime calls, downright deceit, and more besides drew Congress’ s eye to the debt collection industry.” 1 So begins Justice Neil Gorsuch’ s first written opinion as a Justice of the United States Supreme Court. Released on June 12, the unanimous opinion addresses the meaning of the term“ debt collector” in the Fair Debt Collection Practices Act.
Whether you agree with its substance or not, the opinion is, for the most part, crisp, clear, and easy to follow. Yet, in spite of its dry subject matter, it is also, somehow, almost entertaining. Indeed, if this first opinion is any indication, Gorsuch promises to be one of those rare legal writers who is able to combine clarity and conciseness with rhetorical flair. Following are some of the writing techniques he uses to make the opinion“ pop.”
He Develops an Organization Style and Sticks to It
Most modern legal writers have been taught that when analyzing a given legal issue, they should follow IRAC( Issue, Rule, Analysis, Conclusion) or a modification thereof. In other words, they should begin by stating the issue, then state and explain the rule, then apply the rule to the facts at hand, and, finally, state a conclusion. Sometimes referred to as CRAC( Conclusion, Rule, Analysis, Conclusion), CREAC( Conclusion, Rule, Explanation, Analysis, Conclusion), CRuPAC( Conclusion, Rule, Proof, Analysis, Conclusion), or some other acronym, the IRAC format has become a staple of legal writing instruction.
As legal writers gain sophistication, they often deviate from this traditional form. Good writers, though, do not do so haphazardly; instead, they develop an organizational style of their own that fits the genre in which they write. That’ s exactly what Gorsuch did here. After taking some time to explain the overarching issue(“ But what if you purchase a debt and then try to collect it for yourself – does that make you a‘ debt collector’ too?” 2), provide relevant background on the case, and endorse the lower court’ s opinion, Gorsuch begins a
24 THE GAVEL
Tammy R. P. Oltz is an assistant professor and director of the Law Library at the University of North Dakota School of Law. She has a J. D. from Harvard Law School and an M. S. I. from the University of Michigan. methodical take down of the Petitioner’ s position, using a personal, but consistent, organizational style.
Point by point, he dismantles the Petitioner’ s case, and for almost every point, he follows a similar pattern. First, he states the argument. Next, he briefly explains the argument, describing the reasoning on which it relies. After that, he spends the bulk of his time refuting the argument. Then, finally, he concludes. If we wanted to assign an acronym to his organizational style, it might be AERC( Argument, Explanation, Refutation, Conclusion).
This distinct organizational pattern makes it easy to follow the opinion’ s reasoning. The consistency of the style leaves the reader with the sensation of checking off items in a numbered list – so much so, that when the end of the opinion is reached, the conclusion feels almost inevitable.
He Knows When to Break the Rules
Every writing student has been chastised at one time or another for failing to uphold a grammatical, syntactical, or stylistic guideline that seemed more like a quirk of the particular teacher than an actual rule. And it’ s true that, in spite of what we may read on inspirational posters, some rules are not, in fact, made to be broken. Nothing will destroy the credibility of a writer more quickly than poor grammar, spelling errors, or misplaced punctuation.
Nonetheless, just as they do with organizational style, sophisticated writers are able to deviate from“ rules” that seem to be more about tradition or personal preference than about effective communication- especially when the deviation adds to, rather than detracts from, clarity. In his opinion, Gorsuch shows a willingness to defy some of the stodgier guidelines that, unfortunately, are still bandied about as sacred in some circles of the legal writing professoriate. He uses contractions with abandon! He starts sentences with coordinating conjunctions! He dares to use the second person! Sometimes, he even does all three in the same sentence(“ And it’ s easy enough to see how you might also come to possess( obtain) a debt without taking ownership of it.” 3). The overall effect is a direct, conversational tone that belies the complexity of the subject matter.
Of course, Gorsuch is able to ignore these rules precisely because of his facility with language; just like Picasso didn’ t start painting abstract work until after he mastered realism, novice legal writers shouldn’ t play fast and loose with their style until they’ ve mastered the basics. Still, a writer who knows when to break the rules – and which ones to break – is able to control the tone of a work in a way that is unavailable to someone constrained by stylistic rigidity.