LawProse Lesson #244: The importance of fact-checking.
At LawProse, we recommend extensive fact-checking. For most briefs, the prudent approach is to plan a full day of fact-checking before the brief is due. So if the brief is due Wednesday, all day Tuesday will be devoted to fact-checking—and the writer must plan to have a polished draft Monday (in other words, the brief is probably to be drafted on Saturday). This in turn means that all point headings and issue statements must be ready Friday. What we’ve just described probably doesn’t reflect how you draft briefs. Understood. It is ideal, however, and it reflects precisely the way we’ve operated at LawProse for the past 25 years. It’s a disciplined way of writing—one calculated to produce first-rate work product. In the best circumstances, the fact-checker will be someone other than the writer. All of us tend to assume we’re more fastidious than we really are, and it’s important to have a protocol that counteracts this unfortunate tendency. At LawProse, fact-checkers are instructed to assume that there are factual and citational flaws associated with all authorities cited—and to verify character for character. We’re so accustomed to this mindset that it’s occasionally surprising to us when others react to it with astonishment. Sometimes, however, even the most punctilious fact-checking isn’t enough. Take last week: we faulted the late Justice William Brennan for writing the mistaken just desserts instead of the correct just deserts. (Not to be confused with its homograph meaning “an arid, sandy region,” desert in this context is a homophone of dessert and means “what one deserves.” A rare word today outside the phrase just deserts, it occurs frequently in Shakespeare without the just, and experienced Shakespearean actors always pronounce it the same as dessert.) We owe Justice Brennan an apology: it turns out that the correct single-s spelling appeared in the U.S. Reports. But we were checking against the Supreme Court Reporter, which at 109 S.Ct. 2934, 2962 prints the erroneous form. This means, of course, that the United States Supreme Court has an unblemished record with the phrase, having spelled it just deserts all 22 times it was used. It also underscores the importance of looking at the official reports in fact-checking. Sometimes the Court corrects an error after the opinion has been released to commercial outfits, and then the phrasing turns out different in the official reports. That may have happened here. Let us now praise Justice William Brennan for his many and lasting contributions to American law. It may interest you to know that he was responsible for Supreme Court Rule 14(1)(a), which makes the questions presented the first thing a justice will see upon opening a brief. That’s a wise policy indeed, and all courts would benefit from adopting it. Further reading: The Winning Brief 63–66 (3d ed. 2014). Thanks to John West (a former law clerk to Justice Brennan) for bringing the erratum to our attention.