Solicitor General’s Style Guide Calls Out Bad Legal Writing

The Solicitor General, who represents the United States in the nation’s highest court, is the only official of the U.S. government required by federal law to be “learned in the law.”

So those of us who care about legal writing naturally took notice when the second edition of The Solicitor General’s Style Guide: Second Edition dropped on October 3, 2015 and became Amazon’s #1 new release in legal writing. In addition to taking a stand in favor of case law as opposed to caselaw, the guide makes some important recommendations in favor of active voice, plain language, and better typography.

Team Case Law vs. Team Caselaw Nerd Fight

It should not come as a surprise that something in the guide was controversial. And it was only a matter of time before people who care about legal writing would find an excuse to bicker over something in the guide on Twitter.

The powder keg was the guide’s preference for case law over caselaw. In support, it cited a memorandum from President Reagan’s Solicitor General Charles Fried calling for “total extirpation” of this “barbarism” (pg. 87):

solicitor general memo

And Mr. Fried looks like such a gentle soul …

Unfortunately, no one seems to have a copy of the memo. But my confidential sources assure me that a FOIA request is pending.

Adam Plant declared nerd-fight shenanigans on October 20 when he set Bryan Garner against the guide due to his advocacy of caselaw:

You can find the rest of the nerd fight here.

This is what Bryan Garner said in a June 3, 2015 blog post:

But for the two-syllable caselaw, we made the editorial decision to write it as one word in Garner’s Dictionary of Legal Usage and Black’s Law Dictionary.

And in an appeal to authority, he noted that “[i]n fact, our forthcoming treatise—written with 13 appellate judges—is tentatively titled Caselaw.”

Unfortunately for Bryan Garner and his fans, a highly scientific Twitter poll shows case law beating caselaw in a landslide:

No word on whether Bryan Garner will add a space to his Caselaw title.

Striking a Blow for Vigorous Writing

Transitive verbs express something you can do (like kick, push, or clean) to a direct object (like a table, stroller, or a toilet). Using transitive verbs means using the active voice, and using the active voice almost always makes for better writing. The guide takes a step toward encouraging the active voice by telling writers to stop using cite as a noun (pg. iv):

Use “cite” as a transitive verb, not as a noun. The Manual has decided that one cites authorities; one does not cite to authorities. Accordingly, the preposition “to” has been excised wherever it followed ‘cite’ as a verb. In addition, ‘cite’ has been eliminated where used as a noun, replaced in nearly every case by “citation.”

Bryan Garner thinks cite should be used as a transitive verb, too.

Hereinafter is Hereinafter Defunct

Hereinafter looks like one of those words that falls within the category of legalese. And a growing number of legal writers share Justice Stephen Breyer’s opinion on legalese: “I’m against it … Terrible! Terrible!”

But Rule 4.2 of the Bluebook instructs lawyers to use hereinafter to signal a short citation:

After the  first citation of the authority, but before any explanatory parenthetical, place the word “hereinafter” and the special shortened form in brackets.

The Guide calls out the Bluebook position and rejects it:

We depart from the Bluebook in that the word “hereinafter” is not used to introduce a short form for an authority that would be cumbersome to cite repeatedly. Instead a short name will be introduced in the parentheses (without quotation marks) immediately following the source, and the shortened form shall be in the same typeface as the source.

Here is the example the Guide provides (4.2(b) “Hereinafter”):

Proposed Amendments to the Federal Rules of Criminal Procedure: Hearings Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 93 (1977) (Hearings).

Out with Courier New, and in with Century

Matthew Butterick describes Courier New as”spindly, lumpy, and just plain ugly.” It’s hard to disagree. But some courts still require that lawyers write briefs in Courier. For example, Rule 32 of the Alabama Rules of Appellate Procedure states:

Alabama Courier Font

The new edition of the guide represents another step toward removing Courier fonts from polite society. The Guide’s predecessor from 2007 “was typeset entirely in Courier, using underlining, boldface, and sometimes all-caps for emphasis.” (pg. vi.) Even the 2014 update to the first edition of The Solicitor General’s Guide continued to use Courier for the examples of its rules:

Old SG manual pg. 33

To the great relief of many legal writers, the guide is now set entirely in Century Expanded. Not surprisingly, the United States Supreme Court requires that the typeface used in all submissions “must be in a Century family.”

“Em Space” — Panacea For Our Spacing Woes?

As much as legal-writing nerds may bemoan it, many lawyers still use two spaces after a period. The guide comes up with a compromise I’ve never heard of before (pg. vii):

The second edition of the Guide also employs, for the first time, an “em space” (i.e., a special space that is the width of a capital “M”) between sentences and after a colon. This represents a middle-course in the number-of-spaces after-a-sentence-war. Am em space is just one space, but it is significantly wider than an ordinary space.

And you might be surprised by the em space’s origins (pg. vii):

After painstaking research, the editor settled on the em space after concluding that the United States Reports uses the em space in this manner, and appears to have done so for a long long time.

The “Hair Space” — No Longer Just For Typographers.

To my great surprise and delight, the guide delved into the weeds of word-space geekery by recommending that writers use a “hair space” after a lowercase f and j, when those letters are followed by an apostrophe, quotation mark, parenthesis, or bracket.” (pg. vi.)

Will the next edition of The Solicitor General’s Guide tackle the thin space, figure space, and punctuation space? One can always dream.

Brendan Kenny
Brendan Kenny is an attorney at Blackwell Burke PA in Minneapolis, Minnesota practicing in the areas of toxic tort, products liability, and other complex litigation. He is convinced that the legal system would work better if attorneys thought more like trial lawyers and less like litigators.