Opinion Writing 2nd Edition
by
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We have a problem with judicial opinions. Too many opinions are being published that
contribute nothing new to the body of law. One reason is that our jurisprudence traditionally
required a public statement of reasons to accompany appellate decisions. Professor Charles A.
Miller has said, "The law is not majestic enough in the American system to endure for good but
unexplained or unexplainable reason." We cannot go back 500 years to the days of the English
jurist Sir John Fortescue, Lord Chief Justice of the King's Bench, who proclaimed, "Sir, the law
is as I say it is, and so it has been laid down ever since the law began; and we have several set
forms which are held as law, and so held and used for good reason, though we cannot at present
remember that reason."
The purpose of the second edition of OPINION WRITING is to teach judges how to eliminate the
present criticisms of judicial opinions-that they are too long, burdened with too many citations,
tend to ramble instead of clearly defining and discussing issues, are overwritten and overfootnoted,
obese and sloppy instead of clean and neat; in these cases, the difference between well
done and overdone is as apparent and catastrophic as in the case of roast beef. Too many judges
eschew those good, plain words and sentences that communicate rather than befuddle. I call this
the IRS regulations syndrome; Orwell might have called it "lawspeak." Whatever we call it,
there is much too much of it.
The avalanche of opinions being filed is not only the product of the expansion of trial and
appellate litigation. Not surprisingly, the increase in the number of published opinions reflects an
increase in the number of appeals. Appellate judges today are flooded with cases. In 2007 the
average active judge on the 12 regional U.S. Courts of Appeals was responsible for deciding
617 cases and writing 136 opinions. This is a marked increase from 1969, my first full year as
a member of the
responsible for deciding 90 cases per year and writing for publication either an opinion or per
curiam opinion in one-third of them. The national average was 93 cases per active judge.
There are a number of explanations for this "paper storm." In the past, most state and federal
courts had a specialized appellate bar, experts in evaluating the prospects of relief on appeal. No
such bar exists today, even at the level of the Supreme Court. Every lawyer now believes that he
or she is competent to pursue and win an appeal. However, even though one may be a good trial
lawyer and know the rocky terrain of trial courtrooms, this does not guarantee the ability to
handle the slippery slopes of appellate advocacy. Experienced appellate judges sink into
melancholy when they consider how shallow is the preparation of some of the lawyers who
crowd their dockets.
Moreover, we have undergone a profound change in the role of the lawyer-client
relationship. Many lawyers are no longer able to control, or even moderate, the demands of
emotion-laden clients. Often, professional advice and wisdom are insufficient to curb the
excesses of losing parties in law suits. Persons who would never dare to instruct a cardiovascular
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Book Details
About the Book
This second edition of the original 1990 version of Opinion Writing seeks to advise judges on how to improve their writing skills in justifying their decisions.
We follow the common law tradition in stating written reasons for our decisions. The common-law tradition demands no more than a clear statement of reasons. The judicial process expects no more. The brief reader and the opinion readers deserve no less. The ability to write clearly and memorably may or may not sometimes be a gift granted at birth. Without question, it can be perfected by studious attention and constant application, much like a muscle that is strengthened by proper and continuing exercise. To do this -- the writing and editing and rewriting required for polished text -- takes time. Time, unfortunately, is severely rationed these days. Even with the word processors, the high-speed laser printer and the computer-contained dictionary and thesaurus, the modem era of the law does not permit the leisurely pace that our forebears apparently enjoyed.
As this book develops in detail, every opinion should ideally begin with a clear statement of the flash point of the controversy between the litigants. Judges must identify precisely where the litigants differ and tell the reader whether their clash concerns the choice of the controlling legal precept or the interpretation of an agreed-upon precept or, if there is no dispute over either, a statement that the controversy concerns the application of settled law to settled facts. Having identified these contours, we should then proceed to resolve the difficulty and explain why one choice, or one interpretation or given application, is preferred to another.
This discussion explaining the reasons for the decision, the ratio decidendi, must offer more clarity. There must be more exposition of analysis and more selective use of precedent. Lawyers and judges both have an obligation to evaluate the effect of previous cases and to decide which citations they will authenticate and which they will consider simple duplicates, which of them are necessary to the argument and which of them only validate obvious statements of reason
In sum, this how-to book guides judges to recognize what critics say about our work, and teaches how judicial opinions can be improved.
For more information, visit www.opinionwriting2ed.com.
About the Author
Ruggero J. Aldisert is a Senior U.S. Circuit Judge of the U.S. Court of Appeals for the Third Circuit. Judge Aldisert received B.A. and J.D. degrees from the
His distinguished judicial career began in 1961 on the Court of Common Pleas of Allegheny County, Pennsylvania. In 1968 President Johnson nominated him to the U.S.Court of Appeals for the Third Circuit. He served as Chief Judge from 1984 to 1987. He has written several books on the law:
• Road to the Robes: A Federal Judge Recollects Young Years and Early Times
(AuthorHouse 2006)
• Winning on Appeal: Better Briefs and Oral Argument (2d ed. NITA 2003)
• Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. NITA 1997)
• The Judicial Process: Text, Materials and Cases (2d ed. West 1996)
• Opinion Writing 2d Ed. (AuthorHouse 2009)
Judge Aldisert was an adjunct professor at the University of Pittsburgh School of Law and has been a visiting professor at
In 2008, Judge Aldisert was the first recipient of the Distinguished Appellate Jurist Award of the Council of Appellate Lawyers of the
For more information, visit www.opinionwriting2ed.com.