Is “Legal Writing” A Separate Genre of Writing?
Justice Scalia doesn’t think so:
I do not believe that legal writing exists. That is to say, I do not believe it exists as a separate genre of writing. Rather, I think legal writing belongs to that large, undifferentiated, unglamorous category of writing known as nonfiction prose. Someone who is a good legal writer would, but for the need to master a different substantive subject, be an equivalently good writer of history, economics or, indeed, theology.
(caught by the (new) legal writer).
Interesting position, since the man recently released a book on persuading judges. Here’s part of the book’s description:
Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief-writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument.
Do the essentials of sound legal reasoning apply equally well to history, economics and theology? Should a historical argument — an argument that a particular set of facts existed — revolve around a syllogism the same way a legal argument — an argument in favor of applying particular philosophical and logical principles — usually must?
Some principles of nonfiction writing are universal, like brevity, rhythm, and structure, but to say the principles of good legal arguments are equally applicable to other (particularly non-adversarial) disciplines is a gross overgeneralization. Even Socrates felt uncomfortable using his lifetime of philosophy and logic to make a legal argument:
And I must beg of you to grant me one favor, which is this—if you hear me using the same words in my defence which I have been in the habit of using, and which most of you may have heard in the agora, and at the tables of the money-changers, or anywhere else, I would ask you not to be surprised at this, and not to interrupt me. For I am more than seventy years of age, and this is the first time that I have ever appeared in a court of law, and I am quite a stranger to the ways of the place; and therefore I would have you regard me as if I were really a stranger, whom you would excuse if he spoke in his native tongue, and after the fashion of his country: that I think is not an unfair request. Never mind the manner, which may or may not be good; but think only of the justice of my cause, and give heed to that: let the judge decide justly and the speaker speak truly.