Five Ways to Write Like Justice Kagan

Written by Ross Guberman on March 29, 2020

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It’s hard to get lawyers and judges to agree on much these days, but here’s one exception: that Justice Elena Kagan is a terrific writer. Take her majority opinion in Allen v. Cooper. Kagan’s opening facts might already reel you in:

But don’t be fooled. It’s still a case about sovereign immunity in copyright actions. How does Justice Kagan pen such beautiful prose on such a dry issue?

Here are five ways—all techniques to try at home.

1. Sharpen the flashpoint of the dispute—contrast what the parties agree on with what they don’t.

One of the best advocacy techniques, which I call “Flashpoint” in Point Made, is to juxtapose what a case is about with what it’s not about or, as here, what brings the two sides together with what draws them apart:

2. Favor tight, modern language and vivid verbs.

A master of crisp style, Kagan did not write any of the 17 highlighted and boldfaced terms below. What do you think she wrote instead each time? And why?

 

If you want to match wits with Kagan’s actual word choices, just click below.

 

3.  Craft paragraph openers that flow from one to the next, with each contributing a piece of a larger puzzle.

In the best legal and judicial writing, paragraph openers are far more than just topic sentences. As you can see below, Kagan’s paragraph openers meld into a single analytical unit.

 

4. End each paragraph with a springboard to the beginning of the next.

Also on the structural side: with gurus like Justice Kagan, at the end of each paragraph it’s almost as if the writer is staging a conversation with an imaginary reader. She knows she’s fleshed out the opening sentence, and now it’s time to take the reader by the hand and right into the next paragraph. As here:

5. Sprinkle your analytical paragraphs with logical transitions and logical links to the previous sentence.

Now we have a big-picture contrast, brisk and confident word choice, a forward march of paragraph openers, and bridges between the paragraphs as well. But there’s one more ingredient (at least for today): within the paragraphs, an enticing mix of logical connectors (green in the below) and semantic links between the sentences (blue in the below).

That’s a lot for a writer to pull off. Marrying ruthless command over structure, generous logical signposts, and a tight, light style is no mean feat. I was not surprised, in fact, to see that Kagan’s opinion won the Royal Flush of BriefCatch Scores:

 

Take a stab at matching Kagan’s performance on your own document. Like Kagan’s, your issues may lean toward sovereign immunity more than piracy, but that challenge is all the more reason to strive for writing as shipshape as hers.

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Ross Guberman

Ross Guberman

Ross Guberman is the president of Legal Writing Pro LLC and the founder of BriefCatch LLC. From Alaska and Hawaii to Paris and Hong Kong, Ross has conducted thousands of workshops on three continents for prominent law firms, judges, agencies, corporations, and associations. His workshops are among the highest rated in the world of professional legal education.

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