Doing it with style
In a recent poll I made up for this post, only 28% of lawyers felt that judicial opinions were regularly "clear and concise." Most found them to be "overly lengthy," "imprecise," or "confusing," with slimmer margins voting for "appallingly mind-numbing" and "frequently just shy of coherent."
Now, I know, if you're an appellate judge, you're sitting there thinking, "Hey, you try to read briefs full of gibberish and listen to mumbed and meandering arguments, mix that with a dozen or so decisions in previous cases, and try to come up with an opinion out of that, and then do that a couple times a week, and see where you go." That's not much of an exaggeration, at least up here in the 8th, which hands down over a thousand decisions annually; last year, to take one example, Judge Kilbane wrote 112 opinions, either for the court, or concurring or dissenting. She was greatly aided in that task, no doubt, by my contribution of several briefs full of gibberish and my mumbled and meandering arguments.
But help is on the way. Yesterday, I mentioned that the Supreme Court has issued a new citation manual, spelling out over 168 pages in appallingly mind-numbing detail -- whoops, sorry, got the poll results mixed in there -- of exactly how to cite just about anything imaginable. (Well, not everything; if I wanted to use Tuco's Law of Duality, as I did yesterday, in a brief, the manual does not inform me how to cite this. Perhaps "Tuco, The Good, the Bad, and the Ugly (Leone, Sergio 1966)." Inquiring minds want to know.) It's not just for appellate judges, of course; the proper form in an opinion means it's also the proper form for a brief, so you better bone up on this stuff lest the Citation Police show up at your office.
And citation form is only the first part of the manual. The second part governs style. Did you know that whether "governor" is capitalized depends on how you use it? "Governor John Kasich" versus "John Kasich, governor of Ohio." Now you do. Ditto this: if only the month and year of a date is used, you don't put a comma or "of" between them: "I started this blog in May 2006." The manual takes a dim view of footnotes, cautioning that they should not be used "for legal analysis," and specifically stating that citations belong in the body of the opinion, instead of in footnotes; several districts, especially the 1st, have used the latter technique for years, so I guess that's the end of that.
Some of this stuff is reminiscent of high school grammar classes. Here's the advice on how to use "whether":
Whether; whether or not. Use whether alone. For example, "The trial court had discretion to determine whether the defendant was telling the truth." An exception applies when the whether clause is an adverb. For example, "The judge had decided in advance to disbelieve the defendant, whether or not the defendant was telling the truth."
"When the whether clause is an adverb"? Give me a break; I doubt if there are ten lawyers in the state who could tell you what an adverb clause was at gunpoint.
Perhaps the most fascinating part of the manual -- and yes, I know, "fascinating" is a very relative term when we're speaking of a document that spends several pages discussing the proper use of quotation marks -- is the last, which is solely for appellate judges, and deals with the proper structuring of a judicial opinion. It's pretty much what you'd expect: You start with the introduction, which identifies the issues, states the court's conclusion, and gives the facts and procedural posture, then move into the legal analysis, which "articulates in precise terms the question presented," then moves on to "identify sources of legal principles," "distinguishes precedent," and so on. The manual then suggests that the opinion should conclude with... well, a conclusion, which "summarizes the basis of the decision" and "explains what, if anything, happens next." (No, I did not make that latter one up.)
In all fairness -- and seriousness -- that's a pretty good guide. I probably read more opinions than any lawyer in the State who's not paid to read opinions, and since my philosophy of life can be reduced to four simple words -- It's All About Me -- I immediately thought of Sunday mornings, when I do the Case Update for this blog, fire up my BFF Lexis, pull up the appellate cases for the past week, and face the task of slogging though the sixty-some opinions on criminal cases. What do I like to see? Here's my pointers:
1. Don't be a tease. If I want to read a mystery, I'll buy a mystery novel. Let me know up front what the case is about. The 2nd District is excellent at this, usually providing something like
David Jones appeals his convictions for felonious assault and being a general annoyance, claiming that his confession should have been suppressed because he was not advised of his Miranda rights, and that his conviction was either based upon insufficient evidence or was against the manifest weight of the evidence. We find that his statement followed his voluntary appearance at the police station and that he was never in custody, and therefore no warnings were required. We also find that people have gone to the electric chair on less evidence than there was against Jones, and therefore AFFIRM.
2. Don't reinvent the wheel. You're not getting paid by the word. The 8th District opinions used to spend three pages discussing the standard of review for insufficiency and manifest weight claims. This isn't Star Trek; we're not going where no man has gone before. Everybody knows how claims of sufficiency and weight, or claims of ineffective assistance of counsel, are reviewed. If you can't summarize the law on that in a paragraph, try harder. You can.
3. Mix and Match. Just because we have to argue assignments of error separately doesn't mean you do. Oftentimes, they're related. For example, Assignment of Error III argues that certain evidence was inadmissible, and Assignment V argues that the defense attorney was ineffective for a variety of reasons, including that he didn't object to the admissibility of that evidence. Dealing with these two claims makes the opinion more cogent, and prevents logical slipups. I've seen opinions, for example, which deal with the 3rd assignment by saying that, since no objection was made, it will be reviewed only for plain error, and it wasn't so prejudicial as to constitute plain error. The the court gets to the 5th assignment, and dispenses with that by saying that it has already concluded that the error was harmless. It doesn't work that way: if the lawyer had objected, which is what you're deciding now, you wouldn't be reviewing whether the evidence was admissible in the first place on a plain error standard, and the harmless error analysis would be different.
4. You're writing this for posterity. Not to stroke your ego, but people take your stuff seriously. I've won cases just by giving a judge one of your opinions and saying, "Hey, this is what the gang across the street said, and we have the same situation here." It helps if you explain why you do what you do, either by citing cases or explaining your reasoning; a conclusory statement isn't much help. And maybe if you make more effort to explain your result, you'll find that you come up with better ones.
5. Write like you mean it. No, you don't have to turn every gang fight into The Iliad, but you can make it more interesting than reading the phone book. Some have suggested that one of the reasons lawyers write so poorly is that they spend most of their time reading judicial opinions, which one commentator described as ""the largest body of poorly written literature ever created by the human race." Use a little flair. You don't have to describe the facts in rote mechanical fashion: "The victim testified that the defendant pulled out a gun and shot him three times. The defendant testified that he acted in self-defense." How about, "According to Aramis [after all, his name isn't Victim], Johnson, unprovoked, pulled out a gun and shot him three times. This differed markedly from Johnson's version; he claimed it was Aramis who drew a weapon first, requiring Johnson to defend himself."
The last portion of the manual begins by noting that "there are many ways to write a good judicial opinion," prompting the sotto voce response that there are an infinite variety ways to write a bad one. Word.