Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2018, Vol. 44, No. 3 | Page 33

discrete reasons you should win.
II. Judge Kavanaugh’s “Exemplary
Legal Writing Award”
In 2013, The Green Bag Almanac and
Reader honored Judge Kavanaugh with an
“Exemplary Legal Writing Award” for his
opinion in Vann v. U.S. Dep’t of the Interior. 24
I commend the opinion to you as a summa-
tion of the key principles of effective legal
writing I have discussed in this column. Here
are the first two paragraphs of the opinion:
Before the Civil War, members of
the Cherokee Nation had slaves. Those
slaves were freed in 1866 pursuant to a
treaty negotiated between the United
States and the Cherokee Nation. The
Treaty guaranteed the former Cherokee
slaves and their descendants—known
as Freedmen—“all the rights of native
Cherokees” in perpetuity. See Treaty
with the Cherokee, art. 9, July 19, 1866,
14 Stat. 799. Those rights included the
right to tribal membership and the right
to vote in tribal elections.
At some point, the Cherokee Nation
decided that the Freedmen were no lon-
ger members of the tribe and could no
longer vote in tribal elections. A group
of Freemen eventually sued in the U.S.
District Court for the District of Colum-
bia, claiming that the Cherokee Nation
had violated the 1866 Treaty. 25
The issue in the case was whether the
Cherokee Nation was entitled to sovereign
immunity. Judge Kavanaugh held that, be-
cause the plaintiffs sued the tribe’s Principle
Chief in addition to the tribe itself, the Su-
preme Court’s Ex Parte Young doctrine al-
lowed the plaintiffs to pursue declaratory and
injunctive relief. But I want to focus on Judge
Kavanaugh’s masterful use of legal writing
techniques. To begin, that first sentence, at
a mere eleven words, packs a wallop. Then,
notice how he uses substantive transitions
and the repetition of words to bind the two
paragraphs together, like glue. The sen-
tences range in length from 11 words to 26
words. This pattern continues throughout
the opinion for an overall sentence length av-
eraging 23.5 words.
We understand the factual setting and the
plaintiffs’ complaint in just 131 words. I dare
say many of us would have needed many
more words to describe the same factual set-
ting and complaint—it takes work to be brief!
The entire opinion is twelve paragraphs long.
Those twelve paragraphs contain 42 sentenc-
es. Those 42 sentences contain 933 words
(omitting citations). What a joy lawyering
would be if more judicial opinions were only
933 words long! The opinion scores a 13.7
on the Flesch-Kincaid Grade Level Readabil-
ity Formula. This means that a first-year col-
www.vtbar.org
lege student could understand it. Brevity is
the soul of clarity.
III. Conclusion
I prefer Judge Kavanaugh’s straightforward
writing style to Neil Gorsuch’s more provoca-
tive writing style, yet Justice Gorsuch’s writ-
ing style has garnered much more attention.
My column last year referenced numerous ar-
ticles praising Justice Gorsuch’s writing. The
tables may be turning. Critics now complain
about his “cutesy idioms, pointless meta-
phors, and garbled diction.” 26 All seem to
agree that he overuses alliterations. The ti-
tle of a New York Times article about Justice
Gorsuch’s writing styles captures this well:
“#GorsuchStyle Garners a Gusher of Groans.
But is His Writing Really That Bad?” 27
Conversely, in researching this colu mn, I
found very little commentary on Judge Kava-
naugh’s writing style. 28 Yet the thesis of this
column is that Judge Kavanaugh is an excel-
lent writer whose style we should emulate.
The praise heaped on Justice Gorsuch’s writ-
ing may have been premature as we grow
weary of his grammatical gymnastics. At the
same time, I suspect more critics will come to
regard Judge Kavanaugh as an outstanding
legal writer.
____________________
Greg Johnson, Esq. is Professor of Law
and Director of Legal Writing at Vermont Law
School.
____________________
Brett Kavanaugh, Response to United States
Senate Committee on the Judiciary, Question-
naire for Nominee to the Supreme Court 63 (July
11, 2018), available at https://www.judiciary.sen-
ate.gov/imo/media/doc/Brett%20M.%20Kavana-
ugh%20SJQ%20(PUBLIC).pdf
2
Noah A. Messing, The Art of Advocacy 193
(2013).
3
Id.
4
Bryan A. Garner, Legal Writing in Plain English
69 (2d ed. 2013).
5
Kahl v. Bureau of Nat’l Affairs, 856 F.3d 106,
109-11 (D.C. Cir. 2017).
6
Megan McAlpin, Beyond the First Draft 26
(2014).
7
El-Shifa Pham. Indus. Co. v. United States, 607
F.3d 836, 852 (D.C. Cir. 2010) (Kavanaugh, J., con-
curring).
1
THE VERMONT BAR JOURNAL • FALL 2018
Id. at 837.
United States v. Papagno, 639 F.3d 1093, 1094
(D.C. Cir. 2011).
10
Messing, supra note 2, at 194.
11
Hall v. Sebelius, 667 F.3d 1293, 1294 (D.C. Cir.
2012).
12
H.W. Fowler, A Dictionary of Modern English Us-
age 148 (2d. ed. 1965) quoted in Antonio Gidi &
Henry Weihofen, Legal Writing Style 20 (3rd. ed.
2018).
13
Coal. For Mercury-Free Drugs v. Sebelius, 671
F.3d 1275, 1276-77 (D.C. Cir. 2012).
14
Lorenzo v. Sec. and Exchange Comm’n, 872 F.3d
578, 596-97 (D.C. Cir. 2017).
15
For a description of the Flesch-Kincaid scale, see
http://www.readabilityformulas.com/flesch-grade-
level-readability-formula.php
16
https://en.wikipedia.org/wiki/
Flesch%E2%80%93Kincaid_readability_tests (ex-
plaining the meaning of each grade level).
17
Garner, supra note 4, at 81.
18
Messing, supra note 1, at 253.
19
Id.
20
McAlpin, supra note 6, at 16 (“[Y]our reader
should be able to understand your argument or ex-
planation by reading only your topic sentences.”).
21
Doe v. Exxon/Mobil Corp., 654 F.3d 11, 74-78
(D.C. Cir. 2011) (Kavanaugh, J., dissenting).
22
Ross Guberman, Point Made 9 (2011).
23
Newdow v. Roberts, 603 F.3d 1002, 1016 (D.C.
Cir. 2010) (Kavanaugh, J., concurring). In anoth-
er opinion, Judge Kavanaugh starts the Discus-
sion section with, “In our view, at least six consid-
erations foreclose the IRS’s interpretation of the
statute.” Loving v. Internal Revenue Serv. 742 F.3d
1013, 1016 (D.C. Cir. 2014). He then proceeds to
march through the considerations with each of
them numbered. No list is too long for Judge Ka-
vanaugh!
24
See
http://prawfsblawg.blogs.com/prawfs-
blawg/2013/12/green-bag-exemplary-legal-writ-
ing-2013-honorees.html
25
Vann v. U.S. Dep’t of the Interior, 701 F.3d 927,
928 (D.C. Cir. 2012).
26
Mark Stern, Neil Gorsuch is a Terrible Writ-
er available at https://slate.com/news-and-poli-
tics/2018/01/neil-gorsuch-is-a-terrible-writer.html
27
Adam Liptak, #GorsuchStyle Garners a Gusher
of Groans. But Is His Writing Really That Bad? NY
Times (April 30, 2018).
28
I did find one piece of high praise. Laurence
Tribe gave Judge Kavanaugh’s writing this glowing
review: “Kavanaugh could be one of the Court’s
more colorful writers, a group that’s now down to
Kagan and—well just Kagan.” See Zach Helfand,
Big, Strong, Psyched, The New Yorker 27 (August
27, 2018).
8
9
33