September 16, 2014The Main Message
I’ve said many times here that the best way to argue your case is with simple and direct language. Here’s a good example from a current Solicitor’s General brief before the US Supreme Court. The SG’s job here was to argue that a felon’s possession of a sawed-off shotgun counted as a “violent felony” under a federal law that would increase prison time if it did. Part of the table of contents is as follows:
This is pretty good work. It lays out a strong case for why sawed-off shotguns are dangerous, and does so in reasonably direct language.
But the brief should be better. The table of contents of a brief about why sawed-off shotguns are dangerous should be something you could read to Al Capone on the way to a hit without being smacked in the head for sounding like a professor. Why, for example, “short-barreled shotgun” rather than “sawed-off shotgun”? The brief itself makes clear, later, that the words are synonyms. Why the weak “individuals who take possession” in 1(b) and the bizarre language of 2(a)?
Here’s one possible rewrite:
A lot of lawyers become uncomfortable when they read something that has been rewritten in simple language. They don’t think it sounds lawyerly. They don’t think their client will want to pay their hourly rate to create sentences that a third-grader could understand. It doesn’t make them feel smart. But it works. Everyone who reads the second table of contents will understand immediately what the argument is and will see its logic.
There’s another thing about the second version. It is simple enough that it unmasks a good deal of redundancy in the previous version. 1(a) and 1(b) are pretty much the same thing. 2 and 2(a) are the same. 1 and 2 are quite similar. Perhaps the points made in the corresponding sections of the brief itself differ from one another enough that the writers could write better TOC sentences about them. If so, they should do so. If not, they should simplify the structure of the brief. Much redundancy and confusion can be concealed behind complex words, even the relatively straightforward first version above.