Legal Writing Tips From Gorsuch's Opinions

By William Vogeler, Esq. on February 02, 2017 | Last updated on March 21, 2019

Legal writing is a language unto itself with endless opportunities for exploration in expression. It need not be so mundane as "memoranda writing," or "brief writing," or even "opinion writing."

Take it from legal writers like Antonin Scalia, Alex Kozinski, and now Neil Gorsuch: it is an opportunity to distinguish yourself in an otherwise dreary world of legalisms. Their words will immortalize them because they are different. Here are some tips from the writings of Judge Gorsuch, the newest nominee to the U.S. Supreme Court:

Just the Facts, Ma'am

Joe Friday, perhaps the driest detective in television history, was most famous for one phrase: "Just the facts, ma'am." It was how he opened many witness interviews, hoping to avoid the irrelevant details or emotional statements that could muddy police investigations. Yet his classic expression also conveyed his wry sense about facts.

Gorsuch, who writes for the U.S. Tenth Circuit Court of Appeals, has a similar approach. He classically begins his opinions with a wry twist on the facts. Here's an example from his dissent in decision that clothed a police officer with immunity for arresting a teen who disrupted gym class with fake burps:

"If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant 13- year-old to the principal's office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option, and they offer 94 pages explaining why they think that's so. Respectfully, I remain unpersuaded."

Digging Deep

Like any lawyer lost in the mire of a tedious case, Gorsuch has gone deep to write words worth remembering. In an insurance coverage case stemming from an accident on-the-job --of all things not new under the sun -- he famously found a way to keep readers interested:

"Haunted houses may be full of ghosts, goblins, and guillotines, but it's their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago he recovered from his injuries, received a settlement, and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them."

Of course, President Trump has nominated Gorsuch for more reasons than his Scalia-like writings. According to reports, he aligns well with Scalia's views on criminal law (including the death penalty), interstate commerce, and religious liberty.

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