Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2017, Vol. 48, No. 3 - Page 27

by Greg Johnson, Esq. WRITE ON Is Neil Gorsuch a Good Role Model for Legal Writers? Yes and No. In the last issue of the Vermont Bar Jour- nal, Professor Brian Porto analyzed the “Rhe- torical Legacy of Antonin Scalia.” 1 Justice Scalia’s replacement on the Supreme Court, Neil Gorsuch, is widely seen as Scalia’s intel- lectual and stylistic heir. 2 It is fitting, then, that I follow up Professor Porto’s effort with an assessment of Gorsuch’s writing style. Gorsuch burst onto the scene at the Su- preme Court. Noted Supreme Court ob- server Linda Greenhouse has marveled at “the sheer flamboyance of the junior justice’s behavior” in his first month on the Supreme Court. 3 Although Gorsuch only participated in two weeks of Supreme Court arguments— a total of thirteen cases—he has already writ- ten one opinion, two concurrences, and two dissents. 4 This column will refer to these opinions as well to some of Gorsuch’s more noteworthy opinions from the Tenth Circuit Court of Appeals. 5 Gorsuch’s writing has much to commend. Still, I fear that his folksy style risks eroding certain core assumptions about what constitutes effective legal writ- ing. This column will suggest what to emu- late in Gorsuch’s writing and what to avoid. I. Effective Writing Habits Gorsuch’s writing is widely praised for be- ing “lively” and “accessible.” 6 Legal-writ- ing experts say his writing has “flair” 7 and is “breezy,” 8 “witty,” even “playful.” 9 Gor- such’s supporters argue he is “a modern- day Justice Jackson, the Shakespeare of the bench.” 10 A political agenda may have driv- en some of this “hagiography of his writ- ing,” 11 but Gorsuch unquestionably has a plainspoken, easy-to-read, entertaining writ- ing style. How does he do it? A. Storytelling First and foremost, Gorsuch tells a sto- ry. Pundits say his “yarn-spinning” takes le- gal writing “to the next level.” 12 Gorsuch “grab[s] the reader with his openings, known in the news parlance as ledes.” 13 Here are a few of his famous opening sentences and paragraphs. The first one comes from a dis- pute between two insurance companies about which one is liable for injuries an em- ployee sustained while at work. Dry? Try: 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 tick- et booth ended with him plummeting down an elevator shaft. 14 In describing the accident, Gorsuch says that Mr. Holmes was working the “twilight hours” at a haunted house when the flash- light he used to check tickets flickered and died. He went inside and walked through the “inky gloom” to find a replacement. To find his way, Hodges used his cell phone light until an actor told him the light “dampened the otherworldly atmosphere” of the haunt- ed house. Hodges turned off the light and walked through the “brooding darkness” right into the empty elevator shaft. 15 Analyz- ing the case, Gorsuch notes that a provision of the insurance contract “casts a shadow” on one party’s argument and that the sur- rounding circumstances further “darken” the argument. The lesson here is that good writ- ers establish a mood or thematic quality not just in a sentence or paragraph, but through- out the written work. Here is how Gorsuch starts a dissent in an excessive force case brought by the parents of an elementary school student: If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? De- tention? 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 of- ficer decides that, instead of just escort- ing the now compliant thirteen 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 juve- nile detention. My colleagues sug