9 Writing Tips. 9 Justices. One Tumultuous Term.

between conversational writing, which she strives for, and informal writing, which she says goes too far.[5]

If conversational writing is our beacon, it means more than just relaxing word choice. It also means simulating a dialogue with a reader that you must conjure up. It should remind your readers of a professor who keeps even restless students engaged and enthusiastic. Unlike many who wax poetic about writing, Justice Kagan follows her advice. Here, in Becerra v. Empire Health Foundation, For Valley Hospital Medical Center, her style is so conversational that she even speaks to us directly: In any event, Empire is too quick to claim that those who (on its view) are tossed from the Medicare fraction for non-income-based reasons would still wind up in the Medicaid fraction. Recall here the role Empire says the phrase "(for such days)" plays. ... According to Empire's ultimate argument, that phrase is what converts the ordinary statutory meaning of "entitled to benefits" (i.e., qualifying for Medicare) to a special meaning (i.e., actually receiving payments). So where the phrase "(for such days)" does not appear, the usual meaning of "entitled" should govern. Now look again at the description of the Medicaid fraction. ... In that description, "for such days"....[6]

7. Use numbering to organize, explain and deflate your opponent's arguments.

Many trial lawyers and appellate advocates try to make advocacy less a tennis match than an individual sport. Some believe that if you simply ignore your opponents, call them names, or refer to their points as a hot mess, you'll prevail by default. That might work if you're lucky enough to have a slam dunk. The rest of the time, gain credibility and reinforce your message by helping the court understand your opponent's counterarguments and then shooting them down one by one. Justice Brett Kavanaugh offers an excellent model in Oklahoma v. Castro-Huerta. See how he enumerates counterarguments, distills them, and then explains why they shouldn't carry the day:

To overcome the text, Castro-Huerta offers several counterarguments. None is persuasive.

First, Castro-Huerta advances what he describes as a textual argument. He contends that the text of the General Crimes Act makes Indian country the jurisdictional equivalent of a federal enclave. To begin, he points out that the Federal Government has exclusive jurisdiction to prosecute crimes committed in federal enclaves such as military bases and national parks. ...

Castro-Huerta's syllogism is wrong as a textual matter.[7]

7. Favor short, concise, direct, modern words.

On the pure wording front, people sometimes overhype three problems: legalese, passive voice and long sentences. Sure, avoiding these matter. But superb style means more than just staying away from "hereto," rewriting "the lie was told by the plaintiff," and shunning 300-word sentences.

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