Judge Aldisert - Golden Pen Award

Ruggero Aldisert is a master of legal writing. His Logic for Lawyers, his practical guide to brief writing, his classic work on judicial opinion writing have earned high praise. Of his Logic Justice William J. Brennan said:

"This is a book about legal reasoning or legal logic. While not challenging Justice Holmes' classic statement, 'The life of the law has not been logic; it has been experience,' it offers telling arguments that legal reasoning or legal logic may play an equal or even more significant role in the life of the law..."

The old master (he has had senior status on the U.S. Court of Appeals for the 3rdCircuit for 23 years) recently accepted the Golden Pen Award of the Legal Writing Institute, which is dedicated to improving just that. Judge Aldisert's remarks to legal writing profs are themselves a classic statement about the nature of legal writing:

"You teach what J.L. Austin described in his book, How to Do Things with Words, as “performative utterances.” This is because legal writing is more than describing something. It is designed to produce action, that is to say, to perform. The ultimate object of a lawyer who writes is to have his or her opponent concede or settle, or that failing, to have a court issue an order in his or her favor.

Thus, legal writing is not designed to describe something like a journalist, to report what is true or false. It is not what Austin describes as “to constate” or to give information on an action that has taken place. Instead it is designed to convince, to deter, or to persuade. And all this means is to perform, and thus produce future action.

When you are a judge, or are a law clerk writing for a judge,every document you write is a “performative utterance.” It is writing that concludes with a definite performance, such as “Motion denied” or “Judgment for plaintiff” or “Affirmed” or “Reversed.” Thus, when I say that as a judge I am indebted to you, it is because to the extent you produce lawyers with better writing skills, the better we judges can properly understand the nuances of arguments presented. And the higher degree of understanding we acquire, the higher a quality of fairness and justice ensues."

The current issue of the peer-reviewed Journal of the Legal Writing Institute features Aldisert's remarks and an essay by Mark DeForrest on introducing persuasive writing through Martin Luther King's Letter from a Birmingham Jail.