National Law Journal



JUDGES | NEWS

Senate Approves Andrew Oldham for Fifth Circuit Seat

By Ellis Kim
The former clerk for Justice Samuel Alito was approved 50-49. Read More


INVESTIGATION

Magistrate Judge Orders Accused Russian Agent Held Pending Trial

By C. Ryan Barber | Ellis Kim
A federal magistrate judge in Washington ordered Maria Butina detained pending trial on charges she served as a covert... Read More

COMMENTARY

5 Best Practices for Improving Law Firm Diversity and Inclusion

By Grace E. Speights
Law firms are still discussing how to create an inclusive and welcoming environment. Here's how to get started. Read More

ATTORNEY COMPENSATION - GENERAL | NEWS

Labaton Petitions 1st Circuit for 'Fair and Impartial' Judge in State Street Case

By Amanda Bronstad
The New York firm is objecting to a special master's report that found Labaton and two other firms serving as class... Read More

CIVIL APPEALS | NEWS

Kavanaugh's Record on Class Actions Thin, but Leaves Clues He'd Restrain Them

By Amanda Bronstad
U.S. Supreme Court nominee Brett Kavanaugh has a limited record on class actions and mass torts, but many of his rulings... Read More

CLASS ACTIONS | NEWS

Twitter Faces Certified Class in Stock Drop Suit Over User Metrics

By Ross Todd
A federal judge in San Francisco has certified a class of investors in a lawsuit accusing the company of misleading... Read More

NATIONAL LAW JOURNAL
Supreme Court Brief
POWERED BY LAW.COM
Tony Mauro
Marcia Coyle
Jul 18, 2018
It’s mid-July, which means Supreme Court justices are in far-flung places. Neil Gorsuch is teaching in Padua, Italy for the National Security Institute of Antonin Scalia Law School, along with his former clerk Jamil Jaffer. Anthony Kennedy is winding up his annual teaching gig in Salzburg, Austria, thanks to McGeorge School of Law, and Ruth Bader Ginsburg is just getting back from Rome, where she taught for Loyola University Chicago School of Law. (H/T to SCOTUS Map.) And we’re still in Washington, following every move or discussion of nominee Brett Kavanaugh. Two such Kavanaugh explorations are below, plus a podcast worth listening to. Thanks for sticking with us, and we welcome feedback at tmauro@alm.com and mcoyle@alm.com.
 
Write Like Supreme Court Nominee Brett Kavanaugh

Brett Kavanaugh and Neil Gorsuch have much in common—same prep school, same clerkship year, same clerkship boss—but when it comes to writing style, they part ways.

In his dozen years as a judge on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh earned a reputation as a skilled, clear writer—straightforward, succinct and understandable. Nothing fancy, and nothing like Gorsuch’s quirky, sometimes smug and over-explanatory prose that inspired the #gorsuchstyle hashtag.

In other words, Kavanaugh’s writing style is so un-quirky, it might not warrant a #kavanaughstyle meme. Except there is one already, created by Ross Guberman, president of Legal Writing Pro, and creator of BriefCatch.com. And he means it as praise, not criticism.

As he did with Gorsuch in 2017, Guberman has analyzed Kavanaugh’s writing style, and he finds it to “fall right in with Chief Justice Roberts and Justice Kagan. He seems to have the same values of economy and clarity—not controversial, a very safe approach.”

With one colorful exception, Guberman said: Kavanaugh once opined that granting the extraordinary writ of mandamus in the case before him would be like “using a chainsaw to carve your holiday turkey.” And in case you are wondering, Guberman says Kavanaugh uses two spaces after a period, embraces the Oxford comma, and avoids contractions and footnotes.

Below are some of Guberman’s suggestions on how to write like Kavanaugh. (The rest are in a recent LinkedIn essay by Guberman.)

→ Avoid heavy words and phrases: Refreshingly, Kavanaugh avoids “in order to,” in favor of just plain “to.” He’ll write “use,” not “utilization,” and “if” instead of “in the event that,” and “must” instead of “is required to.” He’s also not big on Latin phrases, using “among other things” instead of “inter alia.”

→ State your opponent’s position fairly: In developing his own position, Kavanaugh describes the other side’s case in a neutral and fair way, Guberman said. Doing so, instead of bashing the adversary, is a sign of confidence, and also makes one’s own position more persuasive.

→ Acknowledge that the law is tough: In small but notable ways, Guberman said, Kavanaugh shares his thinking process with readers, helping them understand that doctrine can be hard to apply. “Conveying a sort of nerdy wonderment about the law doesn’t hurt, either,” Guberman wrote.

Guberman’s praise for Kavanaugh stems in part from running 18 of Kavanaugh’s opinions through BriefCatch, Guberman’s popular editing tool that gives instant feedback and suggestions for improving a brief or opinion. Kavanaugh ranked high.

Lawyers, scholars, judges and even Supreme Court justices are using BriefCatch, Guberman said. He would not divulge which justices use the tool. Nor would he discuss his lunch at Del Mar restaurant in the Wharf complex with Justice Elena Kagan on July 13.
 
Podcasting with Don Verrilli

Marking the end of the term and the looming confirmation hearings for Brett Kavanaugh, Marcia chatted with former Solicitor General Donald Verrilli Jr., now partner at Munger, Tolles & Olson in Law.com’s latest Legal Speak podcast. From experience, Verrilli said Kavanaugh is “a brilliant jurist and a very gracious person on the bench and off,” but predicts a “challenging and difficult hearing.”

>> Listen to the podcast here or subscribe on Apple PodcastsGoogle Play, or Libsyn.
 
Will Kennedy Testify for Kavanaugh?

In 1995, Justice Anthony Kennedy sponsored (in writing) the admission of his former law clerk Brett Kavanaugh to the Supreme Court bar.

In 2006, Kennedy swore in Kavanaugh as a judge on the U.S. Court of Appeals for the D.C. Circuit.

But will Kennedy help Kavanaugh again by testifying in his favor before the Senate Judiciary Committee’s upcoming confirmation hearing?

It may sound far fetched, and possibly unwise, but retired and sitting justices have chimed in during the confirmation process before.

→ Then-retired Chief Justice Warren Burger testified enthusiastically in favor of nominee Robert Bork before the committee in September, 1987. Burger decried what he said was the extreme “hype” surrounding Bork’s nomination. ''It would astonish me to think he is an extremist any more than I am an extremist ... If Judge Bork isn't in the mainstream, neither am I,'' Burger declared.

→ Justice John Paul Stevens did not testify for Bork, but made a speech before the confirmation hearing that included praise for Bork, which was picked up by the press. “I personally regard him as a very well-qualified candidate and one who will be a very welcome addition to the Court,” Stevens said. Bork’s nomination, often described as the beginning of the ongoing trend of contentious confirmation hearings, was defeated by a 58-42 Senate vote.

→Justice William Brennan Jr. voiced similar praise about William Rehnquist in comments to the media before Rehnquist’s confirmation hearing as chief justice began in July 1986. Several Republican senators cited Brennan’s statement that Rehnquist would make “a splendid chief justice.”

But as fond as he is of Kavanaugh, it would be no surprise if Kennedy stays out of the glare. If he did testify, Kennedy might be grilled about his conversations with President Donald Trump before Trump nominated Kavanaugh on July 9. One reportsuggesting that Kennedy “negotiated” with Trump to pick Kavanaugh before Kennedy would retire has been deleted. But a Politico story suggests that Kennedy at some point conveyed to Trump his enthusiasm about Kavanaugh as a potential nominee.

And there is precedent for that, too. “Presidents have often received advice from justices, both solicited and unsolicited” about whom to nominate, Clare Cushmanwrote in a 2011 book about Supreme Court customs.
 
ICYMI

➤ The Yale Law School community can’t seem to decide whether it loves or loathes alum Brett Kavanaugh.

➤ Transparency advocates are asking a federal court in Washington to expedite release of thousands of documents related to Kavanaugh’s previous government positions.

➤ Long before his nomination to serve as an associate justice on the U.S. Supreme Court, Kavanaugh got his start clerking for an influential judge on the U.S. Court of Appeals for the Third Circuit.

➤ Former law clerks are leading the charge for Kavanaugh in the Senate.

➤ And speaking of former Kavanaugh clerks, here's a fun fact: Nearly all of his female law clerks later clerked for the U.S. Supreme Court.

TRENDING STORIES

Fox Rothschild and the ‘Dark Art of Copyright Trolling’

THE AMERICAN LAWYER

PwC Launches New Local Law Practice in Singapore, Hiring Prominent Partner from a Top Singapore Firm

INTERNATIONAL

Will the $4.7B Talc Verdict Hold Up on Appeal?

NATIONAL LAW JOURNAL

Hogan Lovells, Akin Gump Flip Into Papa John's Pizza Chain Founder's Fallout

THE AMERICAN LAWYER

Fallen Latham Chair Bill Voge Rose From Iowa Farm to Big Law Pinnacle

THE AMERICAN LAWYER


The NFL’s New Anthem Policy and Free Speech in the Workplace

Talking heads have claimed that, as “employees” of their teams, professional athletes have a right to free speech in... Read More

Activists Want to See SCOTUS Nominee Brett Kavanaugh's Documents — Now

Transparency advocates on Monday asked a federal court in Washington to expedite release of thousands of documents related... Read More

GOVERNMENT | NEWS

5 Things to Know About Rachel Kovner, Trump's Nominee for a NY Federal Judgeship

By Tony Mauro
Here's how she got picked for the nomination, and the number of cases she's argued before the high court since 2013. Read More

LAW FIRM COMPETITION | NEWS

P3 Chair Leaves Polsinelli for Nelson Mullins Ahead of Florida Merger

By Ryan Lovelace
Marcus Lemon heads to Nelson Mullins just as the firm is poised for a big boost in the Southeast. Read More

JUDGES | NEWS

Trump's Latest Judge Nominees Heavy on Big Law, Include Perkins Coie Partner for Ninth Circuit

By Ross Todd
As part of his latest wave of judicial nominations, President Donald Trump has tapped Eric Miller, the Seattle-based... Read More

PRODUCTS LIABILITY | NEWS

Will the $4.7 Billion Talc Verdict Hold Up On Appeal?

By Max Mitchell
The nearly $4.7 billion verdict that a St. Louis jury handed down Thursday against Johnson & Johnson over its talcum... Read More

ELECTION AND POLITICAL LAW | NEWS

Lawyers Love Beto O'Rourke, Not So Much Ted Cruz Anymore

By Miriam Rozen
A name partner at a law firm that has backed a Democratic challenger to the former Republican presidential candidate... Read More

LAW DEPARTMENT MANAGEMENT | NEWS

Kavanaugh at Kirkland; Troutman Hires; MoFo Moves

By Ryan Lovelace
In this week's Washington Wrap: the Big Law minority on the Supreme Court, plus our roundup of DC law firm moves. Read More

Oyez! A Former SG Dishes on Kavanaugh, Kennedy and a Changing Court

Munger, Tolles & Olson partner Donald Verrilli Jr. chats with Supreme Court correspondent Marcia Coyle about the Supreme... Read More


REGULATIONS | NEWS

The Trump Administration Delayed Several Obama-Era Rules. In One Case, That Tactic Has Cost the Government

By C. Ryan Barber
In the early months of the Trump administration, federal agencies embarked on their new deregulation drive by delaying... Read More

REAL ESTATE | NEWS

NY State Officials Open Probe of Jared Kushner's Real Estate Co. Over Allegations It Forced Out Tenants

By Dan M. Clark
The investigation is being handled by the governor's Tenant Protection Unit, an office within the state Division of... Read More

NEWS

Russian Hackers Indicted Over 2016 Hacks of DNA, Clinton Emails

By Colby Hamilton | Ellis Kim
All 12 are members of the Russian military intelligence service GRU, the DOJ said. Read More



Comments