“The Talented Justice Kagan”

On today’s New York Times oped page, Lincoln Caplan writes wonderfully about Supreme Court Justice Elena Kagan.

Yes, he praises her intelligence, but what particularly delighted me was his appreciation of Justice Kagan’s writing. He attributes her easy, readable writing style to the fact that, until nominated to the Supreme Court, she had never been a judge.

Caplan says “…the evidence has mounted that she is achieving a goal that other justices say they strive for and yet seldom attain: writing readable judicial opinions that non-lawyers can understand.”

He points out that Justice Kagan uses a blend of legal analysis and vernacular.

I love that kind of writing. I think a lot of professionals — lawyers and judges especially — shy away from plain speech and especially humor, fearing that their opinions and reasoning won’t be taken seriously. Or that they won’t befuddle the average reader into a common if misplaced belief that if you can’t understand it, it means that the person writing it is brilliant. And you’re not.

Any lawyer or judge who is really smart and supremely self-confident about being smart can communicate with non-lawyers without worrying about a reader’s opinion of her brains.

I was lucky to have worked for a couple of lawyers who were self-confident enough to have an informal policy of beginning their briefs with a Bob Dylan quote. I myself wouldn’t have chosen Dylan but I really enjoyed that they felt free enough to break what I’m sure other lawyers thought of as The Rules of legal writing.

Justice Kagan is demonstrating what I once told my father: There are no rules. Unless you break ’em.

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