Ross Guberman, president of Legal Writing Pro LLC, guest blogs at the Volokh Conspiracy:
Here are three sentences from Paul Clement’s Supreme Court brief against the Affordable Care Act’s individual mandate. When you see bolded language, I’ve replaced Clement’s evocative verb choice with typical lawyer talk. Take a stab at guessing what he actually wrote each time:
In all events, the federal government gains nothing by asking the Court to discard both the mandate and the penalty and replace them with a tax, as the hypothetical tax statute the federal government proposes would be no more constitutional than the statute Congress actually enacted.
What is more, the Court did so for the very same reason that is fatal to the federal government’s arguments here: because the means Congress adopted were neither valid exercises of the commerce power itself nor means “proper for carrying into Execution” that power.
The power to compel individuals to enter commerce, by contrast, is reminiscent of the police power, which the framers reserved to the states.
Now here is the language that Paul Clement, no doubt one of the best brief-writers in the land, used instead:
[T]he federal government gains nothing by asking the Court to jettison both the mandate and the penalty . . . .
[T]he Court did so for the very same reason that dooms the federal government’s arguments here . . . .
The power to compel individuals to enter commerce [. . .] smacks of the police power . . . .
Each of Clement’s vivid choices paints a picture, stokes an emotion, or both.
Many lawyers lament that legal writing squelches their creativity. It doesn’t need to. Take the sentence I just wrote. In my first draft, I wrote, “Many lawyers tell me that legal writing leaves no room for them to be creative.” Luckily, I objected to my own wilted prose, replacing “tell me that” with “lament that” and replacing “leaves no room for them to be creative” with “squelches their creativity.” That sort of word play is “creative” legal writing at work.
Even as a lawyer beholden to forms and terms of art, you have many options on the wording front. Not “take into consideration” but “heed.” Not “take out of context” but “pluck.” Not “cause harm to” but “slash.”
Vivid verbs can also shape how judges see you and your adversary. . . .
The Federalist Society's 2011 National Lawyers Convention featured its Fourth Annual Rosenkranz Debate, in which Clement and Laurence H. Tribe of Harvard Law School faced off on the topic: "RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act." Federalist Society president Eugene B. Meyer introduced the debate, while Nicholas Quinn Rosenkranz of the Georgetown Law Center served as the moderator. You can watch a video of the event here.