Berks County Bar Association The Berks Barrister Winter 2020-21 - 30

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Closing Argument

TWO JUSTICES. TWO LESSONS.
By Donald F. Smith, Jr., Esquire
Upon finishing one " Closing
Argument, " I cannot help but start thinking
of the next topic I will tackle.
So, not long after providing my
submission for the Fall issue, I decided to
focus on the topic of " good writing " for
this issue. Such thinking followed on the
heels of having taught constitutional law to
a class of college, pre-law undergraduates
during the past Spring semester. I was
surprised and largely disappointed by
the quality of their written papers-
typographical errors, lack of clarity, poor
sentence structure, grammatical mistakes,
run-on sentences.
I even resorted to sharing with the class
Justice Antonin Scalia's advice on what is
required to achieve good writing. To no
avail. Thus, I planned to vent in this space.
Then Justice Ruth Bader Ginsburg
died in September. She and " Nino, " as she
called him, were quite the pair. Ideological
opposites, they were very close friends,
sharing a love for opera, including costarring on the operatic stage; celebrating
New Year's Eve together with their spouses;
and visiting India once where they shared a
ride on an elephant.
A light bulb went off in my head! Their
lives and careers embodied two lessons for
us lawyers-the need for good, passionate
writing and civility.
In August 2008, the Scribes
organization gave Justice Scalia its lifetime
achievement award for his promotion of
" clear, robust expression in a field often
lacking in these qualities. " His acceptance
speech is included in Scalia Speaks, a book
containing many of his orations. It was
edited by his son, Christopher, and Edward
Whelan, a former Scalia law clerk.
The book's Foreward was written by
Justice Ginsburg. She shared, " Justice
Scalia was known for opinions of
uncommon clarity and inimitable style...
He was a well-schooled grammarian. "
How did his writing achieve such awardwinning status?
When he taught legal writing at the
University of Virginia Law School, as he
explained in his Scribes remarks, he tried to
instill in his students: (1) " that there is an
immense difference between writing and
30 | Berks Barrister

good writing and (2) the recognition that it
takes time and sweat to convert the former
into the latter. "
To him, " time and sweat " meant
" writing, revising, rethinking, and writing
again. " Personally, I try to follow that
advice, allowing what I write to " marinate. "
Whether it is a Barrister article, a brief or
even meeting minutes, I set the document
aside for a period of time before picking it
up again to proofread, rethink and revise.
Such advice apparently is anathema to a
younger " short attention-span generation. "

	Justice Scalia concluded his remarks
with this observation: " a careless, sloppy
writer has a careless, sloppy mind. "
Scalia's opinions were written with
" verve and panache. " Jeffrey Rosen, in his
book The Supreme Court, wrote that the
Justice had confessed he displayed such
passion only " to ensure that his opinions
are quoted by the editors of legal textbooks,
so they can influence future generations
of lawyers and scholars. " He has
succeeded. As Rosen reports, " The leading
constitutional law casebooks include more
opinions by Scalia than any other justice. "
Jennifer Senior, writing in a New York
Times op-ed piece on September 23, 2020,
noted that, despite their close friendship,
Scalia would " write pitiless opinions, at
times so searing they could grill their own
steak. But Ginsburg chose not to take
them personally... " She wrote in her Scalia
Speaks Foreward, " He attacked ideas, not
people. "

But Justice Ginsburg was no shrinking
violet. Her opinions displayed passion, too.
For example, she famously dissented in
Ledbetter v. Goodyear, wherein the majority
held that the Equal Pay Act required
filing a complaint 180 days after the
discrimination, not after the victim actually
learned of the discrimination.
She opined: " The Court does not
comprehend or is indifferent to the
insidious ways in which women can be
victims of pay discrimination. " She called
upon Congress to act, resulting in the
prompt passage of the Lilly Ledbetter Fair
Pay Act.
Two days after her death, the Times
reprinted an essay she had written and
published four years before. Whenever
asked for advice, the Justice related that she
always shares the same advice her motherin-law gave RBG on her wedding day: " In
every good marriage, it helps sometimes to
be a little deaf. "
She applies the same advice to the
workplace. " When a thoughtless or unkind
word is spoken, best tune out. Reacting in
anger or annoyance will not advance one's
ability to persuade. "
Persuasion. As legal advocates,
is that not our goal in all of our
communications-telephone conversations,
emails, letters, briefs or court arguments?
Justice Ginsburg underlines the point as she
concludes the essay, " Collegiality is crucial
to the success of our mission. "
The importance of collegiality goes
beyond the practice of law. It extends to
hashing out differences while working in
committees, boards of directors, church
groups and those disputes arising between
friends. Justice Ginsburg observes, " You can
disagree without being disagreeable. "
Both justices leave quite a legacy. For
me, it includes these instructions: sweat
over your writing, but do not lose sweat
over differences of opinion with others.
Future lawyers, please take heed. We
lawyers should, too.

Mr. Smith is Executive Director
Emeritus of the Berks County Bar
Association.
		


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Berks County Bar Association The Berks Barrister Winter 2020-21

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