Caress the detail, the divine detail.
The written word is not a peculiarity of the law, but it is an obsession. Being foremost in the habit of multiplying synonyms and compounding problems by the generation of their words, lawyers unsurprisingly have amassed vast bodies of literature on the topic of legal writing. Perhaps both by nature and necessity, the profession and the Academy are continually in pursuit of perfecting the craft. After all, it is by operation of the pen that justice is nurtured. If the sword were mightier, we might have whole libraries on steel. So it is not, for the pen’s the thing.
Invariably, the writer writing about writing must narrow her field; to write on the subject as a whole would be to commit oneself to a Sisyphean labor. This is why, for example, one can delight in whole law review papers on the uses and misuses of popular music lyrics in legal writing (one of which, incidentally, reports Bob Dylan as the most cited among legal journals and judicial opinions).1 The majority of scholarly work on writing—and I make this claim from gut tremors and without the aid of any empirical data whatever—covers the expected fields of study: style, composition, mechanics, grammar, analysis, the “art” and “science “of persuasion, etc. And rightly so. Perfected, they are the tools of effective legal authorship. Yet there are other conceptual avenues worthy of exploration. There are untold numbers of lesser topics ripe for investment of time. There are, in a word or two, other things.
One such thing concerns the use of cultural and literary references—what Prof. Richard Bales calls “cultured writing”—in the daily work of brief-writing.2 Cultural and literary references assuredly have place in legal writing, particularly in the advancement of a legal position. A profession that appears increasingly antipathetic to the encroachments of the literary hand—those counselors who chaff at Byron because the poetry was beat out of them by an errant pedagogy in Legal Writing 1013—should be less restrained in their adherence to the strictures of the craft. To risketh a quote by Shakespeare or not, that then is the question.
As a threshold matter, it must first be agreed that literary and cultural references have a legitimate claim on brief-writing. Is the solemn bar a befitting arena for cultural jest and romantic euphemism? In a word, might Flaubert assist you in that custody dispute? I believe the answer is yes. Literary accomplishment within the law is in essence the history of the law. It is cross-disciplinary and cross-doctrinal. Between Cervantes and invoking the “corporate veil,” the literary device in legal writing is a rooted custom. Attempts to reduce the craft of legal writing strictly to facts and law and application of law to facts while eschewing the playful must fail because of the massive accumulation of literature existing in the common law and scholarly treatises. Moreover, no lawyer—many of whom being poor, weary, liberal arts majors turned barrister-hacks—would stand for such a bleached universe of words as would result from an aesthetic that tacitly prohibits Dostoyevsky.
Black’s defines “brief-writing” as “[t]he art or practice of preparing legal briefs.”4 And judges and lawyers have spotted their writings with cultural and literary coinage for centuries. There is sometimes nothing like the persuasiveness of literary wit or the compelling texture in sage metaphor. There is a certain luster to letting art in at the edges of formalism. The spine of the law may be composed of canons, but the breath of its life is ushered by the fecund jurist. Whether one is relying upon what Prof. Michael R. Smith terms the “pre-existing stylistic metaphor” or whether one is relying purely on one’s fancy is irrelevant.5
Uses of Metaphor
Prof. Smith makes a case for the use of metaphor in legal writing, noting the benefits as including (1) the logos function of providing an analogy that helps communicate the substance of the writer’s point, (2) the ethos function of establishing the writer as a credible and intelligent source of information, (3) the pathos functions of evoking favorable emotions, and (4) the rhetorical style function of drawing attention and emphasis to the writer’s point. Prof. Smith’s postulates are ratified time and again in legal writing. Take for example the case of Brown v. Entertainment Merchants Association, in which the Supreme Court affirmed an injunction preventing enforcement of a California law that would have imposed restrictions and labeling requirements on the sale or rental of “violent video games” to minors. We witness Justice Alito succeeding at all four of Prof.r Smith’s metaphor theses:
But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.
When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.6
The Apt Reference
This is not to suggest that the benefits of the literary reference exist in metaphor alone. As stated by Prof. Bales, “an apt or clever reference can make the reader smile or nod or pause for reflection, and can be a valuable way to sustain the reader’s attention on what otherwise may be a less-than-thrilling legal topic.” Take for example 2nd Circuit Judge John M. Walker’s bit on the right to a public trial:
Ours is not the system of criminal administration that left Franz Kafka’s Joseph K. wondering ‘Where was the Judge whom he had never seen? Where was the high Court, to which he had never penetrated?’ even as his death sentence was carried out.7
Or try on 2nd Circuit Judge Cardamone’s less-than-complimentary description of a party in Beatie v. City of New York:
Plaintiff Russel H. Beatie, Jr. comes into this conflict like a modern-day Don Quixote, tilting at the windmills of the law. Unhappy with the Act’s restrictions on his ability to enjoy a cigar with his meal whenever and wherever he pleased, plaintiff, an attorney and self-described cigar aficionado, brought this action … seeking a judgment declaring the ordinance unconstitutional as applied to cigars.8
As one can see, the art of the apt reference may be as simple as the adoption of a great sentence, or even a great word. It may be the simple footnote sprinklings of a popular-culture ingenuity. It may serve the purposes of clarity or confusion, depending Won the whim of the author. It may enliven a contest between adversaries. It may actualize yet unknown bases for argument, churning up new theories from the dwells of creative musing. Or it may simply serve to illustrate for your reader that you are a not a complete humbug or drudge.
A Cautionary Conclusion
None of this is to say that Bleak House should accompany your suppression motion in toto. While the benefits of successful literary references are manifold, so too are the potential injuries stemming from a failed venture. There are limits to everything in the law, save for hubris and lucre-hunting. Vast swaths of quotation that outdo your argument in page count can hardly be expected to ingratiate you with anyone. Which is to say that while literary and cultural references have their appeal, they should be used carefully and sparingly. This coincides with the caution from Prof. Bales, who writes “[b]efore using a cultural reference, consider the purpose you intend the reference to serve. If its purpose is to impress the reader with your wit or cultural erudition, resist the temptation.” Literary references should always be closely tied to the persuasive project that is the very purpose of your brief.
Additionally, one must be careful in one’s selection of substance. Nearly every reference has the potential to alienate the reader because they have no idea what it is they just read. Avoid the obscure. Plato over Xenophon, Shakespeare over Marlowe, Dickens over Trollope, Goethe over Rilke, etc.—thus generally should choices be made. If I cite to Froissart’s Chronicles, and you say, “Who?” then I have committed one of the many sins of a pedant. You will please to forgive me, in all likelihood, with a curse in the privacy of your desk. The point, dear reader, is that before using any given literary reference, make certain that your darling will not fall on blind eyes. Merely because you have read Swann’s Way, does not mean that your reference to Madame Verdurin will leave me in any state other than complete wonder. There is no virtue in a muted message, and no vice in a clear proposition.
Finally, avoid Hemingway at all costs, if even life and limb.
Adam T. Johnson is a criminal defense attorney at Meshbesher & Associates, P.A. in Minneapolis. He can be reached at firstname.lastname@example.org
1 Alex B. Long, “[Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing,” 64 Washington & Lee L.J. Draft (2011).
2 Richard Bales, “Cultured Writing,” Michigan Bar Journal, January, 2007, at 46.
3 See Wayne Schiess, “Legal Writing is Not What it Should Be”, 37 Southern Univ. L.R. 1 (2010).
4 Black’s Law Dictionary 81 (3rd pocket ed. 2006) (emphasis added).
5 Michael R. Smith, “Levels of Metaphor in Persuasive Legal Writing,” 58 Mercer L.R. 919 (2007).
6 Brown v. Entertainment Merchants Ass’n., 131 S.Ct. 2729, 2750 (2011) (Alito, J., concurring) (internal citations omitted).
7 U.S. v. Canady, 126 F.3d 352, 362 (2nd Cir.2000).
8 Beatie v. City of New York, 123 F.3d 707, 709 (2nd Cir.1997).