by Wan Zafran Pawancheek
Published July 16, 2014
Richard Posner is an excellent writer. And going by what I can glean from his writings, a practical judge too. See this bit, on dispelling our idealistic notions of the trial process:
“…no one should be so naive as to believe that the determination of facts by the familiar adversary process at a trial is proof against error - that witnesses dare not violate their oath to tell the truth, the whole truth, and nothing but the truth, so help them God, for fear of divine retribution; that cross-examination is an infallible or even a reliable tool for exposing lies and mistakes; that all expert testimony is reliable and intelligible; that all trial lawyers are competent at obtaining, evaluating, and presenting evidence; that judges and jurors are skilled at evaluating the credibility of witnesses; or that the rules of evidence are single-mindedly designed to produce truth rather than to serve other, and inconsistent, goals as well, such as protecting people’s privacy, limiting executive power, and conserving judicial resources.
Yet it would occur to few judges to question the proposition that the trial judge has superior ability to judge credibility than the appellate judge, because nothing in the culture of the law encourages its insiders to be skeptical of oft-repeated propositions accepted as the age-old wisdom of the profession.”
Also, see the following gem (one of many), on how judges can write better judgments:
“…Both formalist and realist, and whether judge or law clerk, can write a better, more readable, and also a more honest opinion by heeding a few simple rules.
Eschew legal jargon, which tends to obfuscate and to deceive the legal writer into thinking that he is writing with great precision, when he is simply writing anachronistically. Some technical language is inescapable; the judge cannot simply rename legal doctrines that have established, even if opaque, names, such as “consideration,” “promissory estoppel,” “res ipsa loquitur,” and “burden of production.” But, the examples I gave earlier of fusty legalisms can easily be replaced with plain English.
Indeed, try pretending you are writing for a lay audience. That will help you avoid unnecessary jargon, turgid prose, footnotes, long quotations, tedious repetitions, and the other earmarks of professional legal writing.
State the purpose, unless obvious, of any doctrine or principle on which the opinion relies; this is a check against mindless invocation of doctrines or principles that make no sense - maybe they did once but have since succumbed to mindless repetition.
Do not announce the decision (affirmed, reversed, dismissed, etc.) until the end of the opinion. When as is common it is announced at the beginning (often the first paragraph of the opinion will end with: “We affirm” or “We reverse”), the impression con- veyed is that what follows is simply the rationalization of a result reached for undisclosed reasons. My suggestion is “rhetorical” because of course the outcome will have been determined, at least tentatively, before the opinion was written. But it is not dishonest rhetoric to put the conclusion after rather than before the analysis that supports it, and by doing so make the opinion seem less dog- matic. (A compromise is to say at the outset, “For reasons to be explained, the judgment of the district court is affirmed [reversed, etc.].”)
Do not, in a case in which the panel is split, refer in the majority opinion to the dissenting opinion (a practice that has become orthodox in the Supreme Court, helping, along with the Court’s eighteenth-century orthography, pseudo-learning, and uncontrolled verbosity, to make many of the Court’s opinions extremely painful to read). Such references invite the reader to interrupt his reading of the majority opinion to see what it is the author is responding to (often heatedly), or to suspend belief pending the reading of the dissenting opinion. The way to deal with arguments in the dissenting opinion that are worth replying to is to state them without attribution (“it could be argued that. …”).
Eschew most acronyms and most abbreviations, as they are ugly and distracting.
No footnotes. A judicial opinion is not a scholarly article. If the material in a footnote is peripheral to the opinion, it can be deleted; if important, it can be worked into the text.
The judge assigned the majority opinion, when he is about ready to circulate it to the other judges on the panel, should ask himself, concerning every comma, every word, every sentence, every parenthetical phrase or clause, every paragraph, in the opinion: what work does this word, this sentence, etc., actually do? If the answer is “nothing,” it should be deleted. Facts, names, dates, procedural details-how often they merely pad out an opinion! Must every opinion list the parties’ contentions? For that matter, must all the parties be mentioned? The answer is “no,” because often the caption of a case will list parties that have dropped out or were supernumerary from the beginning; they can be ignored in the opinion. Must every opinion include a detailed summary of the district court’s or administrative agency’s opinion? Repeat the standard of review? Assure the reader that the court has given “careful” consideration to the issues? Demonstrate, in short, that the literary culture in America is indeed dead?
Finally, be sure to read every case, statute, regulation, article, treatise, etc., cited in your opinion. Do not trust the law clerk who found the item and inserted it in the opinion (or, if you write your own opinions, who suggested you do so) to have characterized it correctly. Not that you need to read the entire case, statute, regulation, article, treatise, etc., but you need to read the material, within the cited work, that your opinion cites and enough before and after it to be sure you understand the context.”
I read judgments and reports daily. So I’ve seen my fair share of those that are well-written – and those that aren’t – and I agree that judges would write better judgments if they keep the above in mind at all times. (Judgments so written would also be fairer and less subject to criticism.)