Scalia

For thirty years, lawyers who disagreed with everything he stood for did a strange thing.

They memorized him.

That is the test of a writer, and it is the only test this column cares about. Not the politics. Not the outcomes. The sentences. Scalia’s sentences got quoted by his opponents, recited by law students, and stolen by every brief writer in America who hoped nobody would notice. Study the film and you can steal them too, honestly, the way one fighter studies another.

Move One: The Wolf.

Morrison v. Olson, 1988. The Court upholds the independent counsel statute. Scalia dissents alone. He spends the windup warning that threats to the separation of powers usually arrive disguised, wrapped in good intentions, hard to recognize. Sheep’s clothing. Then he stops the music:

“But this wolf comes as a wolf.”

Six words. Maybe the most famous sentence in modern American legal writing, and its power is mechanical, not magical. The long windup stores the energy. The short sentence spends it. A period, placed early, hits harder than any adjective placed anywhere.

The steal: find the sentence in your draft that matters most. Make it the shortest sentence on the page. If your theme takes twenty words to say, you do not have a theme yet.

Move Two: Objects, Not Abstractions.

Wolves. Sausages. Broccoli. “Pure applesauce.” “Jiggery-pokery.” Scalia argued in things you can picture, and he did it on purpose, because no reader can picture “statutory interpretation” but every reader can picture applesauce sitting where reasoning should be.

Juries work the same way, only more so. A jury cannot picture “conscious indifference to an extreme degree of risk.” It can picture a dispatcher reading a driver’s log, seeing the violation, and sending the truck out anyway. Whoever supplies the picture controls the argument.

Supply the picture.

Move Three: No Hedges, One Confession.

Scalia did not write “it would seem” or “arguably” or “we respectfully suggest.” He wrote what he meant, in verbs that stand up straight. But here is the part his imitators miss: in Making Your Case, he and Garner order you to confront your weakest point yourself, early, in your own words, before the other side frames it for you.

That combination is the whole trick. Hedge nothing. Concede strategically. Mush everywhere reads as fear. Candor in one place reads as honesty, and honesty is the most persuasive thing a court ever hears.

The steal: delete every “clearly” in your draft. If it were clear, the adverb would be unemployed.

A Warning from the Film.

Scalia spent scorn like a man with a printing press. The rest of us spend it like money, because we do not have life tenure. One flash of edge per filing, aimed at an argument and never at a person. His volume is not the lesson. His precision is.

The Drill.

Tonight, take the paragraph you care most about in your current draft. Cut its most important sentence until it fits in six words. Swap one abstraction for something a camera could photograph. Kill every hedge, then confess your weakest point in one honest sentence.

Run the reps. The seat is filled. The sentences are still arguing.