A Conversational Cert in the Style of Justice Kagan

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.