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Judicial writing

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

A selection from a crime novel?  No; it's the opening paragraphs of Chief Justice Roberts' dissent from the Court's denial of certiorari this Monday in Pennsylvania v. Dunlap.

The rest of Roberts' opinion is written in normal legalese, which is probably a good thing.  I like pulp noir fiction -- check out Sean Doolittle's The Cleanup or Charlie Huston's Caught Stealing -- and neither of them is going lose any sleep over the prospect of Roberts deciding to go mass market on them.

But I have to give Roberts a lot of points for trying.  As you might expect, doing this blog requires me to read a fair number of judicial opinions; several hundred a year from beginning to end, and parts of God knows how many more.  There are many that I thought were well-written, in terms of organization and clarity, but there were few that I thought were stylistically memorable.  Perhaps my favorite was Judge Painter's opinion in State v. Payne, in which the court upheld two convictions of felonious assault -- deadly weapon and serious physical harm -- based on a shooting of a single victim.  Judge Painter's dissent, in toto:  "One gun, one shot, one felonious assault."

Such brevity is rare, mainly because appellate courts seem inclined to constantly reinvent the wheel.  Every 8th District decision dealing with insufficiency of the evidence and manifest weight will include a detailed analysis of the concepts, beginning with this:

With respect to sufficiency of the evidence, sufficiency is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.

That exact phrase, according to my BFF Lexis, appears in 130 8th District decisions.  The discussion continues for about four more paragraphs, of course.  Guys, for the 131st, hows about we just cite one of the others and move on? 

There have been several efforts to improve the quality of legal writing, from in-house workshops to publications such as the Judicial Writing Manual put out by the Federal Judicial Center back in 1991.  The best I've come across, though, is "How to Write Good Legal Stuff."  It's appropriately titled, because its essence is getting rid of stilted language.  "The ruling was made by the judge"?  Nope; "the judge ruled."  "It should be noted that Chester v. Morris was decided before the statute was amended."  Why is the phrase "it should be noted that" necessary?  Why not use "then" instead of "at that point in time"?

That makes writing better (all legal writing, not just judicial writing), but it doesn't necessarily make it memorable, like this opinion denying an order to strike a summary judgment motion because it was filed four minutes late, which begins:

Pursuant to a modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions.  Any electronic document may be e-filed until midnight on the due date.  In a scandalous affront to this court's deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m.  I don't know this personally because I was home sleeping, but that's what the court's computer docketing program says, so I'll accept it as true.

It gets even better after that.  But frankly, I'll give up memorable for better.

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