As Ross Guberman and others have pointed out, conversational legal
writing is becoming more and more popular. Justice Kagan is known for her
conversational style—she’s said that she wants her opinions to “sound like” her
and tries “very hard to make [them] understandable to a broad audience.”
I wondered if Justice Kagan’s writing style is starting to rub
off on some of the advocates who appear before the Court. So I looked at a cert
petition filed recently on behalf of Lamps Plus, Inc. by Andrew Pincus of Mayer
Brown’s Supreme Court and Appellate practice group.
I can definitely see some of Justice Kagan’s conversational style in
this cert petition, though the authors still lean heavily on formal language
and sentence structure. But I like that advocates are at least attempting to move away
from the stuffy formality that has plagued legal writing.
For example, “first,” “second,” etc. are helpful markers for the
reader, but they get old, especially if used too many times in a document, and they
aren’t words we generally use when speaking.
So rather than choosing “first,” the
Mayer Brown team uses “to begin with”:
To begin with, the canon is
inapposite . . .
And then, instead of saying “regardless,” they start the next sentence
with the less formal “in any event”:
In any event, the FAA
forecloses the panel majority’s reliance on a state-law canon . . .
I also enjoy the colloquial “[o]n
the one hand” and “[o]n the other hand” rather than the
more formal “conversely,” “nevertheless,” or “however.”
And the Mayer Brown lawyers use other language that makes their cert
petition more interesting, snappy, and readable:
As the concurring Justices put
it . . . (not “stated,” “said,” or a similar word)
The panel majority’s opinion cannot
be squared with (as opposed to “is inconsistent with”) the settled
principles just discussed.
Indeed, class arbitration is a worst-of-both
worlds hybrid of arbitration and litigation. (I probably would have gone
with “best-of-both-worlds hybrid.”)
The panel majority next brushed
aside (instead of eschewed) the multiple portions of the Agreement
demonstrating the parties’ intent to engage in traditional, bilateral
arbitration.
And the “remedy” provision says
nothing about (rather than “does not speak to”) the availability of a class
action . . .
The Mayer Brown cert petition still does contain many “lawyer” words (“moreover”
seems to be a favorite), but it feels like a step in the right conversational
direction.
The Supreme Court granted the petition and will consider whether the
lower court erred in interpreting an arbitration agreement to authorize class
arbitration in Lamps Plus v. Varela.
You can find the petition here and coverage of the case on SCOTUSblog. Oral argument is set for October 29, 2018.
