Not too long ago I was driving in the car with both junior associates. I was talking to my spouse on the phone (safely via hands free), and in the course of the conversation I used the “s” word–“stupid.” An adorable little 4 year old voice called out from the back seat, “Mommy, we don’t say ‘stupid.'” To which I said, “you are right, I am so sorry.”
This little episode, which has sadly happened more than once, got me thinking about the advice that judges give attorneys. Judges are often very quick to give excellent advice to attorneys, but then fail to follow their own advice in writing opinions. Now, I know that opinions are different from briefs, but despite these differences, I think that there are some pieces of their own advice that judges should follow.
Advice #1: Be Brief
Just last week I read a story that included advice from Chief Justice John Roberts on keeping briefs brief. When I teach appellate advocacy, I tell my students that the one thing that ALL judges agree on is briefs are too long. But what about judicial opinions? Oh my! I decided to do an informal survey of the most recent opinions posted on appellate court websites. Here is what I have for published or precedential opinions:
- SCOTUS, Shurtleff v. Boston–49 pages
- 1st Circuit, Coughlin v. Lac du Flambeau Band of Lake Superior Chippewa Indians–56 pages
- 2d Circuit, United States v. Peguero–84 pages
- 3d Circuit, Gaines v. Superintendent—19 pages
- 4th Circuit, United States v. Thomas–17 pages
- 5th Circuit, Owens v. Circassia Pharmaceuticals–30 page
- 6th Circuit, In re Automotive Parts Antitrust Litigation–16 pages
- 7th Circuit, Canter v. AT&T Umbrella Benefit Plan No.—16 pages
- 8th Circuit, A.I.G. Agency, Inc. v. American International Group–10 pages
- 9th Circuit, A.C. v. Erica Cortez—12 pages
- 10th Circuit, Reserve Mechanical Corp. v. Commissioner IRS–72 pages
- 11th Circuit, Global Marine Exploration, Inc. v. France–26 pages
- D.C. Circuit, Pham v. NTSB–14 pages
- Federal Circuit, Atlanta Gas Light Company v. Bennett Regulator Guards, Inc.—23 pages
While this endeavor is highly unscientific (I am sure the empiricists are cringing), my purpose was to get just a random snapshot. This snapshot produced an average of 31.7 pages. Half of the opinions were over 20 pages. Another snapshot would have different results–easily higher, perhaps lower.
What is the problem with long opinions? Well, Luke Burton, a career clerk on the Eighth Circuit has discussed them here. The problems he lists include increased (1) litigation costs, (2) misinterpretation of opinions, and (3) difficulty for the parties in understanding the decision. While all of these are real problems, I think that two and three should especially catch the attention of judges, which leads me to my second piece of advice that isn’t always followed.
Advice #2: Write for your audience.
Judges like to remind brief writers to write for judges and their clerks, not the client and not the partner. Likewise, judges need to remember their audience–the parties. Sure, judicial opinions, especially at the highest court in a jurisdiction, can introduce rules that inform and impact others, but at its core, a judicial opinion seeks to resolve a dispute between two (or more) parties. And while these parties may be sophisticated, they might not be lawyers. Therefore, judicial opinions should be written in a clear, concise manner that is largely devoid of legalese.
Have you ever visited a doctor and had that person explain your ailment in medical terms that you could not understand? I have, and it is really frustrating. Doctors and lawyers deal with some of the most private, trying, and important matters in a person’s life. Just like people should be able to understand their diagnosis from a doctor, parties should be able to read judicial decisions and understand the outcome and reasoning.
Advice #3: Don’t hide the ball.
Based off of advice in Winning on Appeal, I always tell my students that their appellate briefs should not be like the latest show they are binge watching on Netflix. It isn’t a murder mystery where we wonder whodunnit or a Regency romance where we ponder who the protagonist will marry. In a brief the error being appealed, the proper legal standard, and the desired result should be perfectly clear and upfront in the brief. Some judges encourage advocates to use a well-written introduction to present these issues.
Likewise, judges can and should use a well-written introduction to set out the key issues being resolved and the outcome. I remember when NFIB v. Sebelius was decided. When one starts reading that decision the result is not immediately apparent. It takes some deep reading (and nose counting) to figure out what is going on. And while that might be an extreme example, a good trial or appellate opinion sets out clearly in the beginning the issues in the case and the result before diving into the facts and reasoning.
Advice #4: About those footnotes.
Last, but not least, judges need to follow their own advice about footnotes. Just like textual footnotes detract from briefs, they also detract from opinions and contribute to the three problems identified above. Incidentally, I am also team #nocitationfootnotes, but I know that reasonable minds disagree on that point.
I get that many judges, especially trial judges, are working on huge caseload and tight deadlines. I also get that when attorneys don’t follow this advice it makes it even harder for judges to do their jobs. But, perhaps modeling this advice will help slowly move the profession into following it as well.