For The Defense, July 2010 - DRI Today

W R I T E R S ’ C O R N E RSimplicity, Faking, and GeniusTips for Writing about Technicaland Scientific TopicsBy Mary Massaron RossAny intelligent fool canmake things bigger, morecomplex, and more violent.It takes a touchof genius—and a lot ofcourage—to move inthe opposite direction.Albert Einstein, http://rescomp.stanford.edu/~cheshire/EinsteinQuotes.htmln Mary Massaron Ross heads the appellate practice group at Plunkett & Cooney,P.C., in Detroit and is DRI’s Second Vice President. She is a fellow in the AmericanAcademy of Appellate Lawyers, a past chair of the DRI Appellate Advocacy Committee,and a past chair of the ABA Appellate Judges Conference Council of AppellateLawyers. She has handled hundreds of appeals in state courts, including inMichigan, Indiana, Ohio, and California, and in federal courts, including over a hundredappeals in the Sixth Circuit Court of Appeals. Writers’ Corner, continued on pageof America v. Wells Fargo Bank N.A., 374 F.3d 521 (7th9084 n For The Defense n July 2010Brilliant thinkers have the capacity to make complexideas simple. But poor legal writers are prone tothe opposite. As with the “intelligent fools” that Einsteindescribed, many lawyers continue to file briefsfilled with needless jargon, esoteric language, and convolutedsentences so that the poor reader is set adriftin a sea of dense and unintelligible prose.What lawyers need to cultivate is the “touchof genius” to make the complex simple. JudgePosner, known for his genius, fine prose, andoccasionally acerbic comments about the lawyerswho appear before him, recently offereda reminder to lawyers about the need to makecomplex technical and scientific ideas understandable.Judge Posner pointed out that thecapable lawyers, who were well versed in thearcane aspects of reinsurance law that wereimplicated in an appeal, had failed to explainthese legal concepts in a way that a generalistjudge would readily understand. His comments offer alesson in the importance of using common, ordinarylanguage:A note, finally, on advocacy in this court. The lawyers’oral arguments were excellent. But their briefs,although well written and professionally competent,were difficult for us judges to understand because ofthe density of the reinsurance jargon in them.Indiana Lumbermens Mut. Ins. Co. v. ReinsuranceResults, Inc., 513 F.3d 652, 658 (7th Cir. 2008). Good writersthink about their audience and its knowledge aboutthe topics that they plan to write about:There is nothing wrong with a specialized vocabulary—foruse by specialists. Federal district and circuitjudges, however, with the partial exception of thejudges of the court of appeals for the Federal Circuit(which is semi- specialized), are generalists. We hearvery few cases involving reinsurance, and cannot possiblyachieve expertise in reinsurance practices exceptby the happenstance of having practiced in that areabefore becoming a judge, as none of us has. Lawyersshould understand the judges’ limited knowledgeof specialized fields and choose their vocabularyaccordingly.Id. Judge Posner pointed out that “Every esoteric termused by the reinsurance industry has a counterpart inordinary English, as we hope this opinion has demonstrated.”Id. He urged advocates to save the court’s timeby doing “the translations from reinsurance into everydayEnglish themselves.” Indiana Lumbermens Mut.Ins. Co. v. Reinsurance Results, Inc., 513 F.3d 652, 658(7th Cir. 2008).Good writers need to translate technical or scientificterms into everyday English. Schopenhaur lamented,“Men should use common words to say uncommonthings, but they do the opposite.” Arthur Schopenhauer,The Writer’s Chapbook: A Compendium of Fact, Opinion,Wit, and Advice from the Twentieth Century’s PreeminentWriters, 191 (George Plimpton, ed., Modern Library1999). That lament, that people fail to use common wordswhen talking about uncommon things, could be appliedto many poorly written briefs. When both the words andthe “things” are uncommon, the reader will struggle tounderstand. The best approach is to follow Judge Posner’smodel, and avoid jargon. Judge Posner used common,ordinary words in understandable, declarativesentences. Rather than filling his opinion with uncommon,reinsurance terminology, Judge Posner employedcommon, ordinary language in Indiana LumbermensMut. Ins. Co., as well as in other cases, to convey complex,technical ideas in a simple and readily understandablemanner. Advocates would do well to study theseopinions for insight into how to accomplish this. See, e.g.,Movitz v. First Nat. Bank of Chicago, 148 F.3d 760 (7thCir. 1998) (explaining the distinction between loss causationand transaction causation in a complex commercialcase); U.S. v. Hatfield, 591 F.3d 945 (7th Cir. 2010)(discussing causation in the law and the confusion in thelaw regarding its meaning); Travelers Cas. and Sur. Co.