At the end of a day last week I sat
back in the ergonomic chair in my chambers, closed my eyes, and thought about
all the people who would be upset with what I planned to write about in this
column. This pleasant reverie was
interrupted by the jarring sound of screams coming from my assistant Bonnie’s
office just outside my chambers. Suddenly a bat flew into my chambers and
Bonnie quickly shut my door. She and
other court staff yelled through the door, “A bat was flying in the hallway and
it flew into your chambers. We shut the
door so it wouldn’t get out.” “Thanks a
lot!” I yelled back. Bonnie shouted
through the door, “Sorry I can’t stay to help. I have an appointment.” Someone else shouted, “Don’t let it bite
you. They carry deadly diseases.”
The bat was flying all over my
chambers. Its cold, creepy body brushed
against me several times. Yikes! “Blind as a bat” is apt. I guess its radar was askew. Peter, one of my research attorneys, Susan,
the librarian, Shawna, the CHP officer, and Patricia, our chief clerk, came in
to help. The bat had a thing for
Patricia. He wouldn’t leave her
alone. But we eventually coaxed him/her(?)
to leave through an open window. Was
this extraordinary experience with the bat a prophetic warning sign that I not
write the column I had planned?
I was so shaken that I did not begin
my column until the next day. I read in
Friday’s January 4th Daily Journal a refreshingly short article with
a long title “Dear Justices: You Have Strayed from Traditions of Legal Literature,”
written by attorney James P. McBride. Mr. McBride railed against what he sees as the
alarming trend of appellate justices writing “unreadable, dense, wordy”
opinions, loaded with footnotes and “long windy explanations.”
Oh dear, I am compelled to agree with
Mr. McBride. I have written opinions
that cause me to fret over whether I have just drafted an “unreadable tome.” When that happens, I go back and begin the
laborious editing with Ockham (or Occam if you prefer) looking over my
shoulder, sharpening his razor. And that
often takes longer than writing a longer opinion. It was Pascal not Ernest Hemingway who wrote
to his friend that he would have written him a shorter letter if he had had the
time. I know my research is correct,
because my good friend and colleague Justice Hoffstadt also quoted Pascal in
his January 16th Daily Journal column, “Judicial Opinions Must ‘Show
Their Math.’” Hoffstadt also reflects on the value of Mr. McBride’s article.
An appellate opinion is simply an
explanation for a decision. I think Mr.
McBride would accept that definition even though he quotes an old army slogan “don’t
explain.” What I think he means is that
an opinion should not be an argument that must refute every challenge to that
argument. And an opinion is not and
should not be a law review article. That
we can leave to the law professors. Some
cases require a more extensive discussion than others. But often what is written in 60 pages can be
written in 15 or 20. Justices Holmes,
Cardozo, and our own Traynor accomplished this goal.
After reading the opinions of these
exceptional jurists, and trying my best to write readable opinions, I drafted a
primer to remind myself and colleagues who may be interested. It is quite possible you have read it sometime
in the past.
Notes
to Myself and Others
From
Under the Ground
(Apologies
to Dostoevsky)
or
In Pursuit of Goals
However
Short We May Fall of Them –
(Or
is it However Short of Them We May Fall?)
The following self-imposed
rules concerning writing opinions (which also apply to writing briefs) are
reminders, which I forget more often than I wish to admit. “You” means me or any judge, attorney,
litigant, or anyone who may be interested.
1. Start with the briefs. Many are excellent but some are
deficient. Therefore, approach them the way you would a sleeping tiger or
a calm river – with caution. The gently flowing
water may have treacherous undercurrents. The cases cited are not always
pertinent to the issues, and the issues are not always fully developed.
2. The opinions should succinctly state the
following:
A. The nature of the case. “Bay 0. Wolfe appeals the denial of his
motion for summary judgment.” “Grendel Schwartz appeals his conviction of
mayhem.”
B. The issues or questions to be decided.
C. The holding.
We are not writing a mystery novel, so we should immediately tell the
reader that the butler did it. In some cases, we may want to state the holding
in the very first sentence. For example:
“Here we hold that a police officer may stop an automobile for investigation if
the officer has a reasonable suspicion that a passenger in the automobile has
committed an offense.”
D. Facts – pertinent ones only, please. To ensure that you have stated them with scrupulous
care and objectivity, check and recheck the record and transcript. The
briefs may direct you to transcript page numbers in support of a particular
version of the facts. These references are often helpful, but sometimes
they are misleading. Facts in one section of the transcript may
contradict facts in another.
E.
Discussion. Give reasons for the
holding. Each issue should be discussed separately under a separate
numerical heading in the discussion section. This avoids repetition,
makes for easier reading, and keeps the issues distinct in your mind and in the
reader’s mind. Support your conclusion
with cases, statutes, and, above all, logic.
Make certain that each case you cite stands for what you say it does.
F.
Disposition. We usually affirm or
reverse. If we remand, we must give clear, specific instructions to the
trial court.
3. Sometimes a troubling
issue cannot be analyzed thoroughly unless you write a draft to agree and a
draft to disagree with the issue. After
reading both versions, you will often know how to resolve the issue.
4. The opinion should be interesting and
persuasive. It must be free from obscurity and ambiguity. “Plaintiff rented the store.” Was plaintiff the lessor or the lessee? “They are ridiculing judges.” Are the judges the victims or are they just
acting naturally?
5. Write with the reader in mind. Assume most readers know nothing about the
case. Your job is to explain to the
reader what the case is about. Although rudimentary points should not be
labored, they may be necessary as stepping stones to later points.
6. Write in a style that is crisp, concise, and
sparkles with clarity. Some concepts are complex, but they can be stated
clearly. To simplify is not to patronize.
Writers who obfuscate and complicate make it tough for both the reader
and the writer. If the opinion reminds you of Kant, rewrite it so that it
reminds you of Plato. Avoid the abstract; embrace the concrete. Refer
to the parties by name. Your opinion comes alive with people, dogs, cats,
tigers, chairs, doors, houses, cars, roads, and buildings.
7. Short sentences usually deliver more power than
longer ones. Active verbs deliver more punch than passive ones. Don’t
write, “An objection was interposed by counsel.” “Counsel objected” is better. Verbs
should be close to their subjects and objects. What do you think of the
following sentence? “The judge, looking
surreptitiously to the side, and winking at the amused clerk, sustained the
objection.”
8. Make the opinion short,
even though it takes a longer time to write. Use Occam’s razor and cut,
cut, and then cut some more. If we analogize writing an opinion to making
a movie, the cutting room floor should be cluttered.
9. Avoid such pests as:
“in
connection with,”
“with
respect to,”
“despite
the fact that,”
“the
fact that,”
“the
former and the latter,”
“it
would appear that,”
“in
terms of” – unless we are talking about
mathematics,
“viable”
– unless you are writing an abortion case,
“contact”
– unless you are writing about sports, electricity, or vintage aircraft,
“while”
- as a synonym for although,
“parameters”
– as a synonym for perimeter or boundary,
“alternatives”
– not a choice among more than two possibilities or things, “meaningful” – adds
little meaning, particularly when speaking of a “meaningful relationship.”
Avoid most adverbs – in particular, “clearly.” It works in No. 6. If it is clear, you don’t have to sell the
point. Avoid the meaningless adverb “rather.” “He was a rather temperamental judge.” Was he, or wasn’t he?
10. Do not pad. Be wary of
adjectives. They are seductive, but promise more than they give. Our
most dependable friends are nouns and verbs.
Active verbs provide the muscle to carry your ideas forward.
11. Do not use nouns for verbs
unless you plan to work for the Pentagon. Grammatical transvestites are
unseemly. Radio traffic announcers tell us we “transition” from one
freeway to the other; software people “input” or “access” information.
Corporate executives tell their managers to “dialogue” with one another. We, at least, should never “prioritize” our
options.
12. Keep in mind that the
opinion is more than a collection of examples of good grammar and syntax.
It is an essay that should make sense and be logically sound. Its
sentences and paragraphs should support one another. It should be pithy,
but not every sentence should be short and declarative. Some will be
longer and more complex, but all should be clear and easy to understand.
In this way, the opinion will not be rigid like the third little pig’s house of
bricks, but open and flexible, like a geodesic dome.
13. A verb must agree with its
subject in number. Use singular verbs with singular subjects, and plural
verbs with plural subjects. “She works.” “They work.” Problems sometimes develop when words are
placed between the subject and the verb. “The behavior of those
criminals who are raping and pillaging is disgusting.” “One of the lessons the judge
learned was to be compassionate.” “Each of the resumes has some merit.” “He
is one of those attorneys who write (not writes)
unintelligible briefs.”
14. Use parallel construction:
neither/nor, either/or, not only/but (also), both/and, rather/than. Sentence elements joined by a coordinating
conjunction must be parallel. “We should be concerned with good writing
and with clear thinking.” Gerunds should
be compared with gerunds to achieve a parallel construction. “I like playing more than working.”
15.
Avoid footnotes to discuss ideas you do not know how to incorporate into
the opinion. Best to use footnotes
sparingly. Good for citing a long
statute.
16. Decide the case with reasonable
dispatch. Litigants and their lawyers
often lose much with delay, even when they “win.”
17. After writing the
masterpiece, put it away for a day or two. Then come back to it.
Then revise it. Then put it away.
Then revise it again. At this point you will realize that a good opinion
is not written, but only rewritten. If you are truly critical of your own
writing, there is a good chance you will know whether it is honest and has
integrity. But keep in mind No. 16.
I violate my own rules with agonizing
regularity. I would violate them many more times if they were not there in
front of me as a reminder.
Even if you forget these rules,
remember this principle: Unlike the poet who writes to understand, we write to
be understood.
So
ends this column. Oh! I almost forgot about my concern that my
extraordinary experience with the bat was a prophetic warning that I not write
the column I had planned. Did I heed the
warning? The answer, dear reader, I
leave to you.
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