by Greg Johnson , Esq .
WRITE ON Assessing the Legal Writing Style of Brett Kavanaugh
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 first 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 fit 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
30 THE VERMONT BAR JOURNAL • FALL 2018 www . vtbar . org