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
“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.