Legal Writing: Vocabulary lesson from the Supreme Court

Dallas Lain — Tue, 12 Jan 2010 21:31:22 +0000

This is the first post about legal writing to this blog. If the goal of the athlete’s workout is “Bigger, Faster, Stronger” then the corollary ”Quickly, Clearly, Concisely” applies to the legal writer practicing her craft. This series of posts examines the characteristics of good legal writing and other stories of interest to the craft of writing.

The Supreme Court heard oral argument in the case Briscoe v. Virginia yesterday. Counsel for the Petitioner was arguing whether the State must produce a lab tech for cross-examination by the defendant in criminal cases where lab results are introduced into evidence The lawyer’s use of the word orthogonal caused a bit of a stir among the Justices:

MR. FRIEDMAN: [...] I think that issue is entirely orthogonal to the issue here because the Commonwealth is acknowledging -

CHIEF JUSTICE ROBERTS: I’m sorry. Entirely what?

MR. FRIEDMAN: Orthogonal. Right angle. Unrelated. Irrelevant.

CHIEF JUSTICE ROBERTS: Oh.

JUSTICE SCALIA: What was that adjective? liked that.

MR. FRIEDMAN: Orthogonal.

CHIEF JUSTICE ROBERTS: Orthogonal.

MR. FRIEDMAN: Right, right.

JUSTICE SCALIA: Orthogonal, ooh.

(Laughter.)

JUSTICE KENNEDY: I knew this case presented us a problem.

(Laughter.)

MR. FRIEDMAN: I should have — I probably should have said -

JUSTICE SCALIA: I think we should use that in the opinion.

(Laughter.)

MR. FRIEDMAN: I thought — I thought I had seen it before.

JUSTICE SCALIA: Or the dissent.

(Laughter.)

MR. FRIEDMAN: That is a bit of professorship creeping in, I suppose.

In this oral argument in front of the United States Supreme Court, using this word resulted in a complete interruption of the point the lawyer was trying to make. When written, the word doesn’t stand out as much, because the strategy of the reader unfamiliar with the word is to keep reading and glean the meaning from context. But, before using an uncommon word like this in our writing, we should ask ourselves whether we want risk diverting the reader’s attention from our legal argument toward the rabbit-trail of contemplating the word’s definition.

I think Mr. Friedman would say the answer to that question is no.

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Legal Writing: Vocabulary lesson from the Supreme Court