Slate reports on Justice Antonin Scalia's new book, Making Your Case: The Art of Persuading Judges, written with Bryan Garner. Scalia has never been timid about offering his opinions on virtually any subject and Garner is cited regularly in Language Log posts on matters of general and legal usage. As authorities, they make an interesting pair. There is a useful review of Making Your Case in the ABA Journal but I want to focus on only one point about which the media seem to disagree. And I'll try to figure out why they do so. At Slate, Dahlia Lithwick reports Scalia's views:
…he insists that lawyers avoid all contractions, which he deems inappropriate efforts to be "buddy-buddy" with judges.
On NPR (linked in the Slate article) Nina Totenberg elaborates:
Among other matters, the pair disagreed about the use of contractions in legal writing. Garner favors them to make the text more conversational. Scalia says using contractions comes off as an attempt to be "buddy-buddy" with the judge.
But Scalia was talking about oral arguments. Garner is talking about legal writing. I don't know where Nina Totenberg got her information but, based on what Garner says about written contractions in his Dictionary of Modern Legal Usage, it would appear that Scalia and Garner agree that contractions should be avoided in written legal discourse. In his DMLU Garner says:
Contractions are generally avoided in formal writing. Legal writers tend to feel uncomfortable with them — judges, say, in their judicial opinions; appellate lawyers in their briefs; business lawyers in their contracts; academic lawyers in their law review articles…Perhaps contractions don't generally belong in appellate opinions, briefs, contracts, and law review articles.
But why shouldn't we use them in writing to clients or colleagues? Because we've become inured to stuffiness. It has become a natural tone for much of the legal profession. And many of us carry over our tone from one type of discourse (an appellate brief, say) to to other types of discourse.
Garner is discussing legal writing, not the topic of Scalia's views about legal oral arguments. These are different modes of discourse: oral vs. written. Some good people forget that writing and talking are different modalities related to different registers that have different language characteristics. Many people think there is some overarching correctness rule than governs all registers, contexts, and styles. Not so.
On the topic of this written legal language register, Garner's DMLU also cites a number of "excellent legal writers" who feel free to write contractions in the legal context. Then he goes on to say:
Using contractions at every turn, of course, can make the writing seem breezy; for most of us, though, that risk is nil: a gentle breeze might refresh our readers.
It looks like Garner thinks the legal writing register may be in the process of change, moving from its self-imposed ban on contractions toward a more gradual acceptance of them.
How very much like language change in progress!