Jill Barton, the legal writing director at the University of Miami School of Law, just published her new book, “The Supreme Guide to Writing,” which aims to become an AP style for the legal community.
“Writing can sometimes be the decisive factor in the outcome of a case,” said Barton, who noted that in the book’s introduction, she included some examples highlighting the importance of good writing.
She explained that in 2018, the lack of a serial comma in a Maine law that listed overtime exemptions led to years of litigation and a $5 million settlement.
“Maine lawmakers were following the state’s legislative drafting manual when they wrote the law. The manual advised against using a serial comma—and the manual cited several other writing guides as support. But the lack of a serial comma can create confusion, and that confusion allowed Maine dairy workers to recover a hefty settlement,” she said.
The book offers a source for lawyers and judges to reference when deciding how they should write, using the Supreme Court as the ultimate authority.
Barton spent five years studying 10,000 pages of SCOTUS opinions, outlining the grammar and style rules universally adopted by the justices, as well as those the court has discarded.
Barton said that lawyers in South Florida must adapt their writing based on the preferences of judges, meaning they have to change their grammar, style, or voice from day to day. For instance, she mentioned the example of Judge Laurel M. Isicoff who lists some advice on the U.S. Bankruptcy Court for the Southern District of Florida’s website, such as the need to use proper titles and complete sentences that don’t “sound like gibberish.”
“The end goal is for lawyers across South Florida—and elsewhere—to no longer struggle to decide whether, for example, a serial (or Oxford) comma should be used in a list, because now we know that yes, it always should,” she said.
‘Tackling Incredibly Complex Topics’
Despite the court’s conservative shift and political division, all nine justices are decidedly liberal and modern in their approach to writing.
“When you see these really talented writers tackling incredibly complex topics, and doing so in a way that can bend or even break some grammar rules, it shows you there’s a new way to write. Language is evolving so quickly, so I think we need to evolve too,” she said.
In her book, there are tips drawn directly from the justices’ writing style, including using sentence fragments, using contractions, or ending sentences with prepositions, especially when the workaround is very awkward.
“The justices use pop culture references and approachable language,” she said. “They use the personal pronoun ‘you’ to speak directly to readers, making their writing more accessible and conversational. In many ways, they want to tell stories about the people involved in the case. Their decisions aren’t just written for a legal audience.”
And she was also able to break the most frustrating habit for all legal writers: using legalese. The writers of the Supreme Court do not use that jargon. Her study found out that they use a word like “but” compared to “however” 20 to one. They don’t use big conjunctions like “moreover” or “nevertheless” or “nonetheless.” “And they also don’t use kind of that complicated jargon that you and I see every time we sign up for a new website in the Terms of Use.”
A takeaway? Keep it simple.
And if you want to challenge your abilities as a legal writer there is a pop quiz on Barton’s website. “It’s meant to illustrate that the justices don’t follow the typical rules you would expect. I’ve had hundreds of people—legal writing professors, lawyers, and very skilled writers—take this test, and the average score is six and a half out of 10. That shows most people don’t realize how casual the writing by the justices has become.”
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