[The previous essays in this series are here, here, and here.]
Generations of undergraduates, and of alumni, have consulted the concise classic on composition, The Elements of Style, by William Strunk and E.B. White.
Law students and lawyers may well have encountered handbooks for drafting comments, commentaries, complaints, and contracts; and they will certainly have learned at least some of the Bluebook’s rules for legal citations.
However, few outside of chambers might be aware of the illuminating Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013), which can be downloaded at no charge from the Federal Judicial Center.
The first edition, published in 1991, was developed by a board of editors that included nine federal judges, a law professor, and the Wall Street Journal’s Supreme Court reporter (Stephen Wermiel, now one of my faculty colleagues at American University Washington College of Law).
Among the eighteen prominent judges “who participated in telephone interviews to discuss their experience with and views on judicial writing” were: Ruggero J. Aldisert and John J. Gibbons (each of whom had served as Chief Judge of the U.S. Court of Appeals for the Third Circuit; Aldisert was also the author of Opinion Writing, whose first edition, published in 1990, was distributed almost exclusively to newly-appointed federal judges); Stephen Breyer (then sitting on the Court of Appeals for the First Circuit); Ruth Bader Ginsburg (Court of Appeals for the District of Columbia Circuit); Richard A. Posner (Court of Appeals for the Seventh Circuit), and Jack B. Weinstein (of the U.S. District Court for the Eastern District of New York, which he had formerly served as Chief Judge).
Although the introduction suggests that “newly appointed judges and their law clerks will be the principal users of this manual,” its principles and discussions (in 32 pages, plus appendices) should be useful to legal writers generally, and to anyone interested in the process of constructing, or deconstructing, a court’s opinion.
Moreover, the Manual’s terseness and tone, like those of The Elements of Style (to which it refers), can be appreciated as demonstrations of the authors’ own recommendations.
Ten takeways:
● First, the judge must keep her audience in mind.
“[I]f a case involves an arcane area of law familiar primarily to specialists—tax, labor, or antitrust law, for example—a thorough discussion of the facts and legal background will needed, and the judge should avoid the use of technical language and should define any technical terms that must be used.”
Yet, “When an opinion addresses an issue of general public interest or is likely to attract media attention, it should be written in a manner that will ensure it cannot be misunderstood” by the media and the general public.
Deliberately didactic decisions might include A & M Records, Inc. v. Napster, Inc., 114 F.Supp.2d 896 (N.D. Cal. 2000), which addressed, as its first sentence noted, “the boundary between sharing and theft, personal use and the unauthorized worldwide distribution of copyrighted music and sound recordings”; and which enjoined Napster from disseminating, “without express permission of the rights owner,” such recordings owned by the plaintiffs, eighteen record companies.
Another example—which, like Napster, was part of extended litigation—is In re Walt Disney Co. Derivative Litigation, 907 A.2d 693 (Del. Ch. 2005), aff’d, 906 A.2d 27 (Del. 2006), in which the court held that Disney’s directors had not breached their fiduciary duties to the company. The directors had been targeted by shareholders for approving an employment contract that enabled the departing president to receive an allegedly excessive severance package after a relatively brief term in office; and for not terminating that executive for cause, which would have contractually deprived him of his right to severance.
The introduction to Disney acknowleged: “I have tried to outline carefully the relevant facts and law, in a detailed manner and with abundant citations to the voluminous record. I do this, in part, because of the possibility that the Opinion may serve as guidance for future officers and directors—not only of The Walt Disney Company, but of other Delaware corporations. And, in part, it is an effort to ensure meaningful appellate review.”
A related point on judicial clarity, from an article by Judge Aldisert and two of his clerks:
“When judges weigh the case for and against given rulings, they characteristically refer to certain criteria as ‘justice,’ ‘common sense,’ ‘public policy,’ ‘convenience,’ or ‘expediency.’ Decisions should never be justified by such buzzwords without the support of reasoned elaboration. . . . Set forth your rationale and explain your value-based choice, dwelling not in the murky waters of subjectively defined buzzwords.”
Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 1, 37 (2009).
● Second, indicating the court’s holding at the beginning of the decision not only will “save time for readers, particularly researchers” but will encourage the drafter to “state it precisely and succinctly.”
Law students mastering the IRAC (Issue-Rule-Analysis/Application-Conclusion) format of answering exam questions might be interested in the five-factor “framework” enunciated, and then elaborated, by the Manual for a “full-dress opinion”: “an introductory statement of the nature, procedural posture, and result of the case; a statement of the issues to be decided; a statement of the material facts; a discussion of the governing legal principles and resolution of the issues; and the disposition and necessary instructions.”
● Third, non-material facts, stylish writing, and humor should be included—if at all—with judicial (and judicious) restraint. “There is the obvious danger. . . that the reader may think the decision is based on these facts”; “colorful writing. . . may be seen by the parties as trivializing the case”; and, joking “may strike the litigants. . . as a sign of judicial arrogance and lack of sensitivity.”
● Fourth, judges should also abjure “pompous writing. . . such as arcane or florid language, use of the imperial ‘we’ (by a single district judge), or expressions of irrelevant erudition.”
The Manual recommends “plain English”: “There is a place for the elegant word, but it should not be necessary for the reader to have a dictionary at hand while reading an opinion.”
● Fifth, a dissenting opinion should adopt (as in the samples in an appendix) “a temperate, reasoned tone in expressing sincere disagreement with the majority,” “although some judges believe that expressing moral outrage and restrained indignation may sometimes be appropriate.”
Similarly, an appellate opinion, even if reversing a lower court’s decision, “need not attack a trial court’s wisdom or judgment, or even its attitude,” and “should avoid unnecessary criticism of the trial court, such as for failing to consider authority or resting on improper motives.”
● Sixth, judges are advised to cite “law review articles, treatises and texts, and non-legal sources. . . sparingly and only to serve a purpose,” such as to “shed light on relevant historical or policy considerations.”
● Seventh, “Judges should quote [only] briefly, and only when the language makes an important point.”
● Eighth, “If [material] is not important enough to go into the text, the judge must have some justification for including it in the opinion at all.”
Footnotes might be used to “acknowledge and briefly dispose of tangential issues,” or “to convey information that supports the language of the opinion but is not necessary to understand it, such as the text of a statute or material from the record.” However, they “should not be used simply as a repository for information that the judge wants to keep but does not know what to do with.”
● Ninth, (as in another appendix’s examples) a decision remanding a case to a lower court “’for further proceedings consistent with the opinion’” should “spell out clearly what the lower courts or agencies are expected to do, without trespassing on what remains entrusted to their discretion.”
● Tenth, it might be helpful, if time permits, to set aside a near-final draft “for even a few days[, which] may help the judge review things more objectively, gain new insights, and think of new ideas.”
(For a 16-point “Checklist for Critiquing [or, Editing/Proofreading] an Opinion,” see Nancy A. Wanderer, Writing Better Opinions: Communicating with Candor, Clarity, and Style, 54 Me. L. Rev. 47, 70 (2002).)
A number of these recommendations are reflected in the brief profiles written by Justice Daniel J. O’Hern of the members of the Supreme Court of New Jersey under Chief Justice Robert N. Wilentz, and (posthumously) published as What Makes a Court Supreme: The Wilentz Court from Within (2020). (My review of the book appears on its Amazon page.)
Justice O’Hern modestly summed up his own (1981-2000) tenure on the Court: “I loved to unravel complex cases and to try to state their resolution in simple terms that would cover the essential elements of the disposition.”
The Justice noted that among his colleagues he had acquired the nickname, “the Monsignor,” as “a reference to my reputation for excising from Supreme Court opinions unnecessary graphic details in sex cases. I did not do so out of religious conviction but out of good taste.”
That chapter includes an excerpt from a law review article written on the occasion of the Justice’s retirement: referring to a longtime establishment in Red Bank, Justice Robert Clifford observed that “It was Dan O’Hern who invented the ‘Sal’s Tavern’ test, now part of the permanent lore of the Court: a judicial opinion that does not make sense to the gang down at Sal’s Tavern is unacceptable. Do it over.”
In that tribute, Justice Clifford added, “Those who have been privileged to know and work with him will always recall Dan O’Hern’s warmth, dedication to the highest principles, and towering rectitude.”
As a 1987-1988 clerk for Justice O’Hern, who was a true gentleman, mentor, and wordsmith, I wholeheartedly agree.
In his portrait of Justice Clifford, who was perhaps both the most committed and the most passionate grammarian on the Wilentz Court, Justice O’Hern recalled that:
“I had written an opinion containing only two footnotes. One particularly offended him. This gave him the opportunity for the retort, in In re Opinion 662 [133 N.J. 22, 32 (1993)], which left us all fearful of even a single footnote:
“’In fact, I deplore resort to footnotes not only in this case in particular but in judicial opinions generally. They distract. They cause the reader to drop the eyes; to absorb what is usually a monumental piece of irrelevancy or pseudo-scholarship but is sometimes – as here – a significant pronouncement that rightly belongs in the text; and then to return, without skipping a beat, to the point of departure on the upper part of the page. The whole irritating process points up the soundness of John Barrymore’s observation that “[reading footnotes is] like having to run downstairs to answer the doorbell during the first night of the honeymoon,” quoted in Norrie Epstein, The Friendly Shakespeare 75 (1992).’”
