These Are Trained Judges, Readers! Don't Try This Yourselves at Home!

Readers of today's opinion in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President (which I think got it largely right in its substantive analysis), might notice that it included 26 exclamation points (not counting one in a quote from President Trump). Here is just a subset:

The Founding Fathers knew this! …

Please—that dog won't hunt! …

The causal chain contains at most two links, and it is certainly not highly attenuated! …

Please! …

I agree! …

Taken together, the provisions constitute a staggering punishment for the firm's protected speech! The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients! …

Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary's authority to resolve cases and sanction parties that come before the courts! …

I appreciate that the author is a federal judge, and I'm not, but my sense is that the exclamation points do more to detract from the persuasiveness of the opinion than to advance it. And even if it works for a judge, I would strongly recommend lawyers to avoid such massive use of exclamation points—indeed, even any use of exclamation points. ("Quod licet Iovi, non licet bovi," as my father liked to quote.)

To pass along again (albeit imprecisely) an exchange I blogged about in 2007,

[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]

A. Another thing I learned about legal writing: Don't use exclamation points for rhetorical emphasis. And all-caps — don't do that, either. Bold is also very bad. So is italics: It's OK to use it to highlight important terms in quotes, or terms that you're trying to distinguish from each other in your arguments, but don't use it as an exclamation point.

B. But what then are you supposed to use for rhetorical emphasis?

A. How about … forceful arguments?