Karin Ciano, The Daily Record Newswire
Let’s imagine a friend has asked you to read over her brief. She’s eloquent, persuasive, and her grammar and punctuation are beyond reproach. And then you see a snarky phrase. Your pen hovers over it. Let it be, or take it out?
It’s a hard question, as we are living in a golden age of snark. Increasingly, Supreme Court justices will heat up their writing with the verbal equivalent of an eye roll and circle snap — and if it’s OK for them, we ask, why not for the rest of us? Also the tone of writing is a very personal judgment, and “is this too snarky” may be the legal writing equivalent of “do these jeans make me look fat” — the truth may not be well received.
Here’s the truth: If it occurs to you to ask whether it’s too snarky, the answer is probably yes.
What is snark, exactly? We all know it when we see it, but we may not appreciate its origins. The word dates from the mid-19th century; it means both to snort, and also to find fault with, to nag, to make sharply critical comments. “Snarky” means irritable and short-tempered. Some dictionaries now define “snark” as a portmanteau of “snide” and “remark.”
Whichever definition you prefer, snark has a way of saying more about the speaker than the subject. We imagine it will make us sound smart and brave, a speaker of truth unto power, but what the reader tends to notice is the anger. Consider Justice Antonin Scalia, a jurist with a deserved reputation as a rigorous thinker and killed writer, who happens also to be an acknowledged master of snark known to salt his dissents with stinging criticism of the majority. Earlier this summer, two Scalia dissents (King v. Burwell and Obergefell v. Hodges) drew media attention: “Scalia rips fellow justices in sarcastic dissent.” “Justice Scalia is mad as hell, and he’s not going to take it anymore.” “When Scalia gets mad, he does not hold back.” The senior associate justice of the Supreme Court of nearly 30 years’ tenure, weighing in on two of the marquee cases of the year, and what do we notice? He’s pissed off.
Guess what? It’s just as noticeable in briefs, and even less forgivable. When I write a snarky sentence, I actually snort. Oh this is good, I think. As if it were a 1980s high school movie, I imagine a knowing crowd of colleagues, watching me execute a flawless verbal takedown on a deserving — yet clueless — subject. The fantasy is so satisfying, it’s hard to edit it out of later drafts. And yet it has to go.
Why? Because snark is not a substitute for legal argument. At best, it tells the court that I think I’m clever and my opponent is not — hardly a reason for a favorable ruling. Also, the more junior you are, the more unseemly it can appear. Think what you will about its effectiveness, there can be no debate that Justice Scalia has earned his right to snark; but in my case, it looks more like a Pop Warner kid doing an NFL end-zone dance.
We all need someone to save us from our own attempted cleverness. Fortunately, we have friends and colleagues who are willing to look things over. To these good souls I say: You are the legal profession’s best hope against the rising tide of snark, and I salute you.
To make the task of hunting snark in your friends’ (or your own) writing easier, I offer the following field guide. When you see these signs, snark may be lurking nearby.
—Do the sentences suffer from an outbreak of adverbs and adjectives? (Hardly, clearly, plainly, surely, obviously, quite, stark, feeble, naked, bald . . . As Justice Scalia writes, “I could go on.”) Cut ‘em.
—What about neologisms (“jiggery-pokery”) and euphemisms (“applesauce”)? It’s cute, but it’s name-calling, not reasoning.
—What about parentheticals, brackets, emphasis, or rhetorical questions? “(Huh?)” or “[whatever that means].” Yep, it’s funny if you agree with Justice Scalia—but if you don’t, it looks mean. If it wouldn’t be funny to the target, it probably doesn’t belong in a brief (this is where a reader with a little distance can give you the most valuable feedback).
—Are simple declarative sentences prefaced with snarky opening clauses? (“Had the Court bothered to look …” “For what it is worth …” “It is probably piling on to add …” “For its next defense of the indefensible …” “Perhaps sensing the dismal failure of its efforts …” “Even less defensible, if possible …”) Enough already. Trim the weight of these clauses from their sentences, and see if the result is more compelling. If the other side’s reasoning is as bad as you think, it may be obvious without the editorializing.
—Is the writer implying that someone else is a liar or an idiot? (“Whoever would have dreamt that …” “Would anybody reason that …” “Could anyone maintain with a straight face …”) Maybe I’m in the minority school of thought, but if you’re trying to make a point like this, I would say that less is more.
—Does the writer actually talk about himself in a legal document? (In one footnote Justice Scalia proclaims “I would hide my head in a bag” before joining an opinion with the majority’s opening sentence.) OK, the image of a Supreme Court justice with a bag over his head is kind of funny. But writing yourself into the story is generally not recommended — you and I should take it out.
But wait, the writer says. Won’t this make my writing boring? How can I be sure the court will even pay attention to the good stuff?
Remember that if it’s that good, a court is unlikely to miss it. Our job, like a late-night TV sidekick, is to serve up the material; the court will come up with the zingers. And if we’re lucky, the joke won’t be on us, or our clients.
May your end-of-summer be relaxing, and your legal writing be snarkless [whatever that means].
