WRITING AND WRITERS: STYLE AND WRITING MANUALS : UNITED STATES: GOVERNMENT : LAW: COURTS: JUDGES: Judicial Writing Manual: A Pocket Guide for Judges

David P. Dillard
 

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WRITING AND WRITERS: STYLE AND WRITING MANUALS :

UNITED STATES: GOVERNMENT :

LAW: COURTS: JUDGES:

Judicial Writing Manual: A Pocket Guide for Judges

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Judicial Writing Manual: A Pocket Guide for Judges

Second Edition

Federal Judicial Center

2013

http://www2.fjc.gov/sites/default/files/ 2014/Judicial-Writing-Manual-2D-FJC-2013.pdf

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A shorter URL for the above link:

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http://tinyurl.com/peo4c4e

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I. Introduction


Judicial opinions serve three functions.

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First, written opinions communicate a courts conclusions and the reasons for them to the parties and their lawyers.

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Second, when published, opinions announce the law to judges, academics, other lawyers, and the interested public.

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Finally, the preparation of a written opinion imposes intellectual discipline on the author, requiring the judge to clarify his or her reasoning and assess the sufficiency of precedential support for it.

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The opinion should fairly, clearly, and accurately state the significant facts and relevant rules of law and demonstrate by its analysis the reasonableness of its conclusions. Misstating significant facts or authorities is a mark of carelessness, and it undermines the opinions authority and integrity. Unclear or ambiguous writing reflects the authors lack of clear thinking and defeats the opinions purpose.

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This manual is intended to encourage judges and law clerks to
think critically about their writingnot only about what to include
and what to exclude, but also about how to write well. We expect that
newly appointed judges and their law clerks will be the principal users
of this manual. It therefore takes a functional approach to opinion
writing: describing the considerations that arise at each stage of the
writing and editing process; recommending organizational and stylistic
techniques; and explaining the reasons for its recommendations.
In keeping with the principle that there is no single right way to write
an opinion, the manual explores alternatives and the considerations
for choosing among them.

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This manual should also help experienced judges take a fresh look
at their approaches to writing and their styles. Professor Robert Leflar
wrote:

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Pride of authorship is by no means an unmitigated evil. . . .
[T]his pride can drive a man to hard work and with meticulous
effort. The poorest opinions are apt to be written by judges who
take no pride in them, who regard the preparation of them as
mere chores. Pride in work well done is a proper incident of good
craftsmanship in any field of work, including law. An opinion in
which the author takes no pride is not likely to be much good.1

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II. Determining the Scope of the Opinion

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A judicial opinion informs parties of the outcome of their case and
articulates the legal principles on which the decision is based in order
to guide the bench, the bar, academia, and the public. Because written
decisions serve both case-deciding and law-making functions, they
range in form from one-sentence, unpublished summary orders to
formally structured, citation-laden, full-dress opinions. An opinion
that is intended only to inform the parties of the outcome of their
dispute should not be as elaborate as one intended to serve as a precedent.

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Before beginning to write, judges should decide what purpose
the opinion will serve and how to write it to suit that purpose.

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Three types of decisions

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This manual will refer to three types of written decisions: full-dress
opinions, memorandum opinions, and summary orders.

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Full-dress opinions are those that present a structured discussion
of the facts, legal principles, and governing authorities involved in a
case. The significance or number of the issues presented in a case, the
novelty of the question it poses, and the complexity of the facts are
among the factors that determine whether an opinion requires fulldress
treatment.

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Memorandum opinions are appropriate if the decision does not
require a comprehensive, structured explanation but still needs some
explanation of the rationale. They are generally brief and informal and
may or may not be published. Per curiam opinions are generally included
in this category. Appendix A contains an example of a memorandum
opinion.

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Summary orders simply state the disposition of the case. They
sometimes include a brief statement of findings and conclusions, but
often provide little or no explanation. Summary orders are usually
unpublished. Appendix B contains an example of a summary order.

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The next section discusses some of the factors a judge should consider
in determining what kind of opinion to write.
Factors to consider

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Three factors influence the scope and style of an opinion: the complexity
of the facts and nature of the legal issues, the intended audience, and whether the opinion will be published. Although the manual
addresses these factors separately, they are interrelated.

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Facts and issues

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The complexity of the facts and the nature of the legal issues are the
principal factors that determine the kind of opinion required. If the
precedents are clear and the material facts are not complicated, the
scope of the opinion will be limited. If the controlling law is uncertain
or the material facts are complex, exposition and analysis are needed
to explain the reasons for the courts decision. Some cases that present
complex fact patterns may require lengthy discussion of the facts even
though the applicable law may be simple. Other cases that raise novel
legal issues may require extended analysis of law and policy.

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The scope of an opinion will be influenced by how well developed
the law is on the matter at issue. Judges should consider whether the
issue has previously been decided authoritatively and whether another
opinion would aid in the development or explanation of the law. If
the issue has been thoroughly discussed in prior opinions, the judge
need not trace the origins of the law or elaborate on its interpretation.

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In some cases, it is sufficient to affirm a decision for the reasons stated by the court below. If the decision merely closes a gap in existing law, little more is needed than an explanation of the applicable principles and the reasons for the courts choice among them. If, however, the decision contributes to the development of the law, a brief, published per curiam or memorandum opinion is appropriate. A summary order may be sufficient if clear existing law is simply being applied to facts that are undisputed or that are made indisputable on appeal because, for example, they are jury findings supported by substantial evidence.

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When, however, an opinion involves less developed areas of the law and lays down a new rule or modifies an old one, the judge must think not only about the decisions rationale but also about its impact as precedent. The judge should discuss and analyze the precedents in the area, the new direction the law is taking, and the effect of the decision on existing law. Even if it appears that the litigants do not need a detailed statement of the facts, the opinion should present sufficient facts to define for other readers the precedent it creates and to delineate its boundaries. The relevant precedentsand the relevant policiesshould be analyzed in sufficient detail to establish the rationale for the holding.

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Audience

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Opinions are written primarily for the litigants and their lawyers,
and for the lower courts or agencies whose decisions they review. If
an opinion is addressed to the parties, it should provide them with a
fair and accurate statement of what was before the court for decision,
what the court decided, and what the reasons for the decision were.

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This can generally be accomplished without a full-dress opinion. The parties will be familiar with the facts and will generally not be interested in an extensive exploration of the law, other than what is needed to give the losing party a clear explanation for the result. The judge must also ask whether the opinion has something to say to others besides the parties. Opinions intended to inform other audiences may require additional factual development and legal analysis.

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How much analysis is required, and how detailed it must be, depends
on the subject matter and the probable audience. Judges may assume
a certain level of familiarity with the law on the part of lawyers. But if
a case involves an arcane area of law familiar primarily to specialists
tax, labor, or antitrust law, for examplea thorough discussion of the
facts and legal background will be needed, and the judge should avoid
the use of technical language and should define any technical terms
that must be used.

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An opinion remanding a case must tell the lower court what is expected on remand. An opinion that sets guidelines for trial courts to follow must state the factual basis, legal rationale, and policy foundation of the guidelines sufficiently so that trial judges can apply them correctly.

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The judge needs to consider whether a statement of facts and legal
analysis that adequately explain the decision to the parties will also
enable a higher court to understand the basis for the decision. When
the decision is based on complex facts, a more elaborate explanation
than is necessary for the parties may be helpful to the appellate court.

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And when the decision involves novel issues or an emerging area of
law, it is appropriate to trace the prior development of the law and
to explain the legal and policy rationales at some length. Opinions
should not, however, be turned into briefs or vehicles for advocacy.


Members of the general public will rarely read opinions. But reporters
from the media will communicate what they believe to be the
substance of an opinion that strikes them as being of public interest.
When an opinion addresses an issue of general public interest or is
likely to attract media attention, it should be written in a manner that
will ensure it cannot be misunderstood. The mark of a well-written
opinion is that it is comprehensible to an intelligent layperson.

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Publication

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The courts of appeals have adopted rules, internal operating procedures,
and other policies concerning publication and non-publication
of opinions. Some of the policies specify criteria for determining
whether an opinion should be published. For example, D.C. Circuit
Rule 36(c)(2) establishes the following publication criteria:


An opinion, memorandum, or other statement explaining the basis
for this courts action in issuing an order or judgment will be
published if it meets one or more of the following criteria:


(A) with regard to a substantial issue it resolves, it is a case of
first impression or the first case to present the issue in this court;


(B) it alters, modifies, or significantly clarifies a rule of law
previously announced by the court;


(C) it calls attention to an existing rule of law that appears to
have been generally overlooked;


(D) it criticizes or questions existing law;


(E) it resolves an apparent conflict in decisions within the circuit
or creates a conflict with another circuit;


(F) it reverses a published agency or district court decision,
or affirms a decision of the district court upon grounds different
from those set forth in the district courts published opinion;


(G) it warrants publication in light of other factors that give it
general public interest.

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Similar criteria are included in First Circuit Rule 36(b)(1); Fourth
Circuit Rule 36(a); Fifth Circuit Rule 47.5.1; Sixth Circuit Internal
Operating Procedure 32.1(b); Ninth Circuit Rule 36-2; and Federal
Circuit Internal Operating Procedure 10.

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Other circuits have more general guidelines, giving judges latitude
to decide whether to publish opinions. The Third Circuit, for example,
has two forms of opinions: precedential and not precedential, and
[p]recedential opinions are posted on the courts internet website.3

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The Second Circuit permits disposition by summary order [w]hen
a decision in a case is unanimous and each panel judge believes that
no jurisprudential purpose is served by an opinion . . . .4 Otherwise,
written opinions, including per curiam opinions, are published.5

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In the district courts, the decision to publish is entirely in the judges discretion. (Note, however, that some legal publishers, including Westlaw, put certain district court orders and opinions on line whether or not the judge designates them for publication and even sometimes when a judge states that the order or opinion is not for publication or not to be cited. The publishers base their decision on whether they think that the order or opinion is significant or otherwise of interest.) Because decisions of district judges are merely persuasive authoritythat is, they are not binding precedent even in their own districtspublication of such decisions should be the exception. In addition, time constraints argue against writing formal opinions unless the decision involves a novel or complex issue or a matter of public importance and thus may be useful to attorneys and judges or be of interest to the public.

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Because unpublished decisions are written primarily for the parties,
they will require little or no elaboration of the facts and law. Often
they will take the form of summary orders or memorandum opinions.
The determination as to whether a disposition should be published
or unpublished should be made as soon as possible, so that the judge
who writes the opinion will not spend an undue amount of time on it
if publication is not warranted.


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The complete publication may be read at the URL above.

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Sincerely,
David Dillard
Temple University
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