September 20, 2004
Trials, transactions and the
insider’s guide to the
practice of law.
Supplement to the Los Angeles Daily Journal
and San Francisco Daily Journal
LITIGATION FILES
ADVISER
How to Create That Memorable Turn of Phrase
By Daniel M. Kolkey
Nothing persuades in appellate briefs or judicial
opinions like a memorable turn of phrase that
captures the essence of the argument. It is what
can turn an effective brief into a winning brief; it
is the sound bite that sells; and it can turn a cited
opinion into a celebrated opinion.
For instance, despite the U.S. Supreme Court’s
earlier decision upholding the exclusionary rule
in federal prosecutions, Judge Benjamin Cardozo
rejected the exclusionary rule under New York
law in People v. Defore with this single, inspired
sentence that encapsulated the arguments against
it: “The criminal is to go free because the constable
has blundered.”
Likewise, Supreme Court Justice John Marshall
famously wrote in McCulloch v. Maryland that “the
power to tax is the power to destroy” in rejecting the
power of the states to tax the notes of the Bank of
the United States. But few realize that Marshall’s
inspiration came from Daniel Webster’s brief, who
wrote, “An unlimited power to tax involves,
necessarily, the power to destroy.”
But creating such memorable phrases is not
taught in law school. Judge Richard Posner of
the 7th U.S. Circuit Court of Appeals suggests
that “[t]he power to compress a tradition of legal
thought into a sentence is given to few judges.”
But while that is no doubt true, the ability to
compose an eloquent turn of phrase is as much
technique as inspiration. Indeed, both statesmen
and jurists have been using these techniques to
enhance their arguments for centuries. Bryan
Garner, one of the nation’s leading experts on
legal writing, has categorized a number of effective
rhetorical techniques in his excellent work, The
Elements of Legal Style. And William Safire, The
New York Times columnist and former
speechwriter for President Nixon, suggests that
“[p]hrasemaking is easy.” He identifies a number
of techniques in his compendium, Lend Me Your
Ears: Great Speeches in History.
Of course, technique is only necessary, not
sufficient. The trick is to determine the single
sentence that captures the essence of your
argument — no matter how uninspired your
phrasing is — and to then apply one of the
following techniques to make it memorable.
P Inversion. Benjamin Cardozo, ranked as one
of our most eloquent jurists, commonly used the
uncommon tool of inverting the subject and predicate
of a sentence. This enabled him to emphasize key
words by placing them first. Thus, in Coler v. Corn
Exchange Bank, Cardozo defended a statute that
had long gone unchallenged: “Not lightly vacated is
the verdict of quiescent years.” He utilized the same
technique to famously define fiduciary duty in
Meinhard v. Salmon: “A trustee is held to something
stricter than the morals of the market place. Not
honesty alone, but the punctilio of an honor the
most sensitive, is then the standard of behavior.”
Posner observes that the heavy citation to this
opinion is “a tribute to the importance of eloquence
in law. No judge seems ever to have come up
with a better formula with which to express the
concept of fiduciary duty.”
P Metaphor. The use of metaphor — a figure
of speech that attributes a characteristic of one object
to another — is a common way of enlivening a
phrase. In writing about the illogic of invoking the
continuing violation doctrine to revive a time-barred
claim, I wanted to find a metaphor that could make
the point in a pithy fashion. I ultimately decided to
use a hijacking metaphor as follows: “A time-barred
claim hijacks a timely claim to ride through the
courtroom door.” Even more effective is the creative
and unusual metaphor that forces the reader to pause.
This can be risky, but Douglas MacArthur conjured
up the unusual metaphor of a “thirsty ear” in referring
to long lost memories in his famous speech at West
Point in 1962: “I listen, then, but with thirsty ear, for
the witching melody of faint bugles blowing reveille,
of far drums beating the long roll.”
P Parallelism. Great writers and orators —
from Abraham Lincoln to Winston Churchill to
Cardozo — have used parallelism to persuade.
As Garner explains it, parallelism is “[t]he use,
for rhythmic effect, of similar constructions in
adjacent syntactic units, often giving an
equivalent, complementary, or antithetical sense.”
In his second inaugural address, Lincoln used
this technique powerfully in describing the North
and South’s contrasting and common motives that
ineluctably led to the Civil War: “Both parties
deprecated war; but one of them would make war
rather than let the nation survive; and the other
would accept war rather than let it perish. And
the war came.” Note how Lincoln paralleled and
contrasted “make war” and “accept war” with
“let the nation survive” and “let it perish.”
Simultaneously, this parallelism defended the
North’s actions: The North was one that
“accepted” war, whereas the South “ma[d]e war”;
and the North only “accepted” war rather than let
the nation “perish.”
Churchill, a master of words, used contrasts in
parallel structure in describing a “black market”
as follows: “If you destroy a free market, you
create a black market.” Listen to Churchill’s
eloquence as he contrasts “destroy” with “create”
and “free market” with “black market.” Yet, in 11
words, he describes the evils of price controls in
a memorable and persuasive fashion.
Indeed, contrasts can be easily and effectively
used without parallelism. Here is another
example from Churchill: “Never stand so high
upon a principle that you cannot lower it to suit
the circumstances.”
P Chiasmus. Another technique Gardner
describes is chiasmus — “[t]he repetition of
words, in successive clauses, in reverse
grammatical order.” This can be truly effective,
but only when used to make the point and not
simply to use the technique.
An example: Justice Jackson’s concurrence in
Brown v. Allen, “We are not final because we are
infallible, but we are infallible only because we
are final.” Another: In his inaugural address, John
F. Kennedy declared, “Let us never negotiate out
of fear. But let us never fear to negotiate.” And
Churchill: “Some men change their Party for the
sake of their principles; others change their
principles for the sake of their Party.”
Rhetorical techniques, of course, cannot
substitute for organization, analysis, brevity or
clarity. But as attorneys and judges know, those
standards for good writing are not always
sufficient. For the knockout punch, look to that
eloquent turn of phrase.
Daniel M. Kolkey, formerly an associate
justice on the 3rd District Court of Appeal,
is a partner in the San Francisco office of
Gibson, Dunn & Crutcher, where he is a
member of the firm’s appellate and
constitutional law practice group.
Reprinted with permission from the Daily Journal EXTRA. ©2004 Daily Journal Corporation. All rights reserved.
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