WRITING DECISIONS

A Matter of Judgment

Forward• This presentation is made for educational

purposes only and not for profit.• An attempt has been made to credit all

sources. • This presentation does not relate to any

particular party or case unless otherwise noted.

• This presentation is not intended to offer any specific legal advice to any party.

• The presentation has some interactive features and is best viewed in slide show mode.

Prepared byGary E. PayneChief Admin. Law JudgeOkla. State Dept. of Health2010gpaynelaw@aol.com

“How do I know what I think until

I see what I say?”

Variously attributable to

Winston Churchill and

others

There is an art to both Making and writing administrative decisions.

Being able to articulate the reasons for a decision in clear, concise language is a skill nobody is born with and Law schools don’t teach it. Fortunately these skills can be learned and every administrative hearing officer can become a successful scribe.

INTRODUCTION

Considering the volume of public encounters with administrative agencies, administrative decisions may be the largest category of legal writing and reading interaction the public has with the legal system. Every hearing officer understands the pressure of issuing a large volume of decisions and the lack of time allocated.Regardless, hearing officers and agencies must strive to improve the varying skills of writers; deliver well-reasoned, clear, and reader-friendly decisions to the public; and measure organizational performance based upon the quality of decisions.

WHAT YOU DO IS IMPORTANT!

ALJ’s are professional writersWhether an ALJ writes well or poorly, the decision will be published and become a public record. Opinions may be dissected for years to come.Authors are judged by the contents of their work. Is it skillful, logical, conclusive?ALJ’s usually preside over a highly specialized area and possess a unique expertise. Don’t assume that everyone knows and understands what you know about your area of expertise.

Words are your tools

  Writing a convincing judicial opinion is similar to writing a good novel. In legal writing, facts can be emphasized or omitted, made to appear relevant when they are not, and skewed one way or another. The goals are the same--to tell a story by using words as tools to produce a desired reaction. 

"A judicial opinion tells many stories and speaks with many voices." John Leubsdorf, The Structure of Judicial Opinions, 86 MINN. L. REV.. 447, 447 (2001).

Decision Making

The problem is to teach ourselves to think, and the writing will take care of itself.

Christopher Morley

I’m sorry this letter is so long but I did not have time to make it shorter.

Blaise PascalThinking is the hardest work there is, which is probably why

so few engage in it.

Henry Ford

Decision Making

Don’t let the perfect be the enemy of the good. Voltaire

Obey the Rule of Law

Code of Judicial Conduct

The first paragraph of the preamble to the Code of Judicial Conduct states that “judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.” 

Judicial accountability to society must include the responsibility to help those untrained in the law to better understand the basic concepts and principles involved in judicial decisions

Judgments are not delivered in isolation.Various audiences, ranging from the parties and appellate courts to the wider community may examine AND criticize your decisions for years to come.

Mean what you say!"You should say what you mean," the March Hare went on. "I do, "Alice hastily replied, "at least, I mean what I say - that's the same thing you know. " "Not the same thing a bit!" said the Hatter...

Alice in Wonderland

PRIMARY CHALLENGE

Every hearing officer must comprehend the essential law governing administrative decisions and stay abreast of any changes.

Knowing the law is not enough. A hearing officer must be able to organize the issues, find facts and apply the law to the facts in order to resolve the issues and, it must be done in language ordinary people can understand.

WRITING STYLE: The end product

Decisions should not only be well-organized, concise and clear of thought and expression, but also well written.

Writing is really the end point of a process that includes actually making the decision.

The Five Parts of a Good Opinion

1. The Opening Paragraph: The Nature of the Action

2. Statement of the Facts 3. Questions to be Decided 4. Determination of the Issues 5. Disposition and Mandate

Orders Must Contain Reasons

"The reasons for a decision

must be intelligible and they

must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues,’ disclosing how any issue of law or fact was resolved.”

From "Decision-Writing“ by the Hon. Justice Garry Downes, Australia, March,2007

Good Decision-writing

Good decision-writing will result in

a simple, concise, though well

reasoned and easily comprehensible,

explanation of why the decision was made. Every conclusion will answer the

question “why.” A "because" clause answering the question "why" must

be included. Write with Conciseness and Clarity Make the Opinion Readable

Justice is not there unless there is also understanding

Legalese

Using legalese can make your writing appear archaic, too formal, or stilted. Examples of legalese include the following words: aforementioned, aforesaid, hereto, heretofore, herewith, said (when used as an adjective), thereby, therein, thereof, thereto, therefor (as opposed to the conjunction, therefore), therewith, whereby, wherefore, wherein, and whereto.

Often, legalese can be omitted without changing a sentence’s meaning or creating ambiguity. In other cases, simpler words can be substituted.

Wordiness: Flee Verbosity

  Wordiness is taking more words than necessary to make your point. It may take the form of redundant expressions or phrases.

Longer expressions may be appropriate at times as a matter of style or to avoid ambiguity as long as sentences and paragraphs are not cluttered with words, phrases, and expressions that needlessly distract the reader.

“The more a man’s tongue flees verbosity, the more his intellect is illumined so as to be able to discern deep thoughts; for the rational intellect is befuddled by verbosity.” St. Isaac of Syria

Examples

General Examples of Wordinessabsolutely essentialaccording toall ofare connected withas a resultas long asat all timesat this timeclose proximity

Better Phrases or Words

essentialperall (or each)relate tothusifalwaysnow (or currently)proximity

Examples Continued

Words with Multiple Syllablesalthoughaltogetheranticipatebecausecommenceconsequentlyintooftentimesthereforeuponutilizewheneverwithin

Simpler Words though

togetherexpect sincebegin (or start)thusinoftenthusonusewhenin

Redundancy

Free and clear mean the same thing.A popular legal redundancy is that a debt is "due, owing and unpaid." Unpaid does not necessarily mean that a debt is due."Big Giant" The word "Giant" signifies something huge, big or large; therefore the word "Big" is not necessary.. "Raise up" or "Lower down" the anchor. Raise can only go in one direction,"Up" as lower can go in only one direction, "down".

Be succinct

Why waste words? Wouldn't it be nice if more judges could cut to the chase like Judge J.H. Gillis of the Michigan Court of Appeals?

“The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich. App. 259, 169 N.W.2d 326. He didn't. We couldn't.”Affirmed. Costs to appellee.

Denny v. Radar Industries, Inc., 184 N.W.2d 289 (Mich. App. 1970).

Be consistent: Decisions, opinions, orders—what’s the difference? Do you write a “Final Order,” issue a

“Judgment” or sign a “Decree?” Use the right terminology and be consistent. Consistency doesn’t mean

being ironclad and never

changing or making an

exception

Your main goal is to always hit the target!

VAGUENESS

JUDICIAL AMBIGUITY MAY ACTUALLY PROMOTE NONCOMPLIANCE AND INCREASE A COURTS WORKLOAD BECAUSE THE PARTIES HAVE TO COME BACK.

Hemmingway Style

Choose the simplest word that adequately expresses the idea. Example, judges should use "later" instead of "subsequently," "before" instead of "prior to," "stop" instead of "cease," "explain" instead of "elucidate," "place" instead of "locality," and "begin" instead of "initiate." Justice Marshall F. McComb suggested: In selecting a word, think: First, do I know what it means? Second, how many of my readers know its meaning? Third, is there another word which expresses the same concept; if so, would more readers know its meaning? If you decide that a substituted word would be more readily understood by a larger audience use it

Decisions Mirror Court Action

Just as with your appearance in the court room, your decisions must show no bias. You must be fair and, you must appear to be fair

The Elements of a Judicial Opinion

Every opinion contains four elements:1. Structure

2. Content

3. Format

4. Organization

Structure

The text of a decision can be set forth in several ways: chronological sequence, comparison/contrast, description, problem/solution, and cause and effect.

Chronological Sequence: Signal Words

afterafterwardas soon asbeforeduringfinallyfirstfollowingimmediately

initiallylatermeanwhilenextnot long afternowon (date)precedingsecondsoon

thenthirdtodayuntilwhen

Comparison/Contrast: Signal Words

although as well as as opposed to both but compared with different from either...or even though

 

howeverinstead ofin commonon the other handotherwisesimilar tosimilarlystillyet

Generalization/Principle: Signal Words

additionally always because of clearly conclusively first for instance for example furthermore

generallyhoweverif...thenin factit could be argued thatmoreovermost convincingnever

not only… but alsooftensecondthereforethirdtrulytypically

Process/Cause: Signal Words

accordingly as a result of because begins with consequently effects of finally first for this reason

how tohowif...thenin order tois caused byleads/led tomay be due tonextso that

steps involvedthereforethuswhen...then

Credit: MU College of Ed, eMints Nat. Center

Avoid common grammatical errors

EXAMPLE: affect and effect: "Affect" is a verb meaning "to influence": "The testimony was intended to affect the jury." "Affect" can also mean "to pretend": "She affected surprise." "Effect" is usually used as a noun meaning "consequences": "She noted three major effects of the treatment." Sometimes "effect" may be used as a verb meaning "to bring about or accomplish": "The mediator effected an agreement

ISSUES WITH CREATIVITY

Judicial opinions contain imagery from many sources. Throughout American legal history, judges have used metaphors and humor and have borrowed from literary works in crafting their opinions.

Idioms

Idioms are phrases that don't mean what they literally say, but have meaning to native speakers. For example, the phrase under the weather is known by most native English speakers to mean that someone isn't feeling quite well, but if you weren't a native English speaker, you would probably have no idea what the phrase means by just looking at the words.

Use of Metaphors

In one Oklahoma case, the court described the defendant as "lowdown, degenerate and filthy.“

(Was this metaphor or literal description of a criminal?)

Williams v. State, 226 P.2d. 989, 997 (Okla. Crim. App. 1951). See Martha Grace Duncan, Slime and Darkness: The Metaphor of Filth in Criminal Justice, 68 TUL. L. REV. 725 (1994) (describing frequent use of slime and filth metaphors in judicial opinions).

Use of Metaphors

Don’t leave the parties out in left field.The use of metaphors, like a sports metaphor is a common practice used by judges. Caution must be used because metaphors can create a linguistically unlevel playing field for those who are unfamiliar with their use.People of different sexes, cultures, or age groups may have a hard time relating.

Judicial Humor: Views Differ

Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he's down. (542 P.2d 676 (Kan. 1975).

"Imagery and humor can reshape the dispute into the story that it originally was, help bring the dispute back 'down to earth,' and dispel some of the notions held by those affected by the legal system.“

Jordan, Imagery, Humor, and the Judicial Opinion, 41 U. MIAMI L. REV. 693 (1987);

Humor in Decisions

"[H]umor in the format of doggerel verse . . . can undermine judicial opinions as sources of law." Susan K. Rushing, Student Essay, Is Judicial Humor Judicious?, 1 SCRIBES J. LEGAL WRITING 125 (1990).

"The bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig." W. PROSSER, THE JUDICIAL HUMORIST vii (1952).

Poetry

Some farmers from Gaines had a plan.It amounted to quite a big scam.But the payments for cottonbegan to smell rotten.Twas a mugging of poor Uncle Sam.

Judge Irving Goldberg, U.S. v. Batson, 782 F.2d at 1309 (1986)

Study What Other Judges Write

Read Chief Justice Roberts decision in S. Carolina v. N. Carolina, 558 U. S. ____ (2010) decided in Jan. of 2010.Justice Roberts near-conversational writing style has been called fine, crisp, clear, plainspoken and effective.Note how Roberts drives home the point with the reiteration of the word 'never,' hammered in with a potent, one-word sentence. At another point, Roberts runs out an explication and then almost casually adds: "And all this for what?"

WRITING EFFECTIVE CONCLUSIONS When writing a decision, the conclusion is the

opportunity to make clear what has been decided and explicitly and unequivocally state the consequences of the decision.

Be persuasive, explicit and unequivocal. Remember for whom you are writing. (Your

audience).

THE NUTS & BOLTS

PRACTICAL CONSIDERATIONS

ENHANCE READABILITY THROUGH SHORTER SENTENCES

One suggestion: Footnoting citations allows writers to vary their sentence length and to shorten the average sentence length. No one wants a three-word sentence sandwiched between citations. It gets lost.

NOTE: Lay persons may not be familiar with phrases such as ibid, infra and supra. Write foot notes in plain English also.

List of Abbreviations

• Define any abbreviations or acronyms you will use throughout your opinion.

• Remember again who your audience is. To a pro se party, all of the lingo will be unknown to them and they will not have anyone to explain all the jargon.

• If you would prefer to just define each term when it is used initially that is acceptable too.

• Having the list at the beginning just makes for quick reference when reading the opinion.

Never assume: "If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass -- a idiot."

Charles Dickens, Oliver Twist

INNOVATEAsk the parties to submit their list of witnesses and exhibits as well as their post-hearing briefs via email or diskette to you so that you can cut and paste, then edit, where possible. Keep in mind that you cannot merely adopt one party's brief as your own, however, no matter how much you may agree with it.

Procedural Safeguards• Make a list of procedural safeguards

unique to your jurisdiction and the rules of your court.

• Check them off as you review the case and write your decision.

• Examples: • Is a protective order clause needed to

prevent the publication of a minor’s name?

• Were all deadlines met?• What about notice of appeal rights?

Re-examine what you write

• Always ask yourself:• Does this Order provide guidance?• Is it clear?• Does it effectively communicate both the

decision and the process leading to the decision?

• Do you have to explain it for it to be understood?

JUDICIAL REVIEW AND REASONS

•The chance of a decision being overturned on judicial review is lesslikely if the decision is supported by a clear and logical application oflaw to facts, effectively communicated to the parties.

2

The 8 Steps to Legal Reasoning

Author unknown. Attempt to credit unsuccessful

SUMMARY 1. Organize2. Keep your audience in mind3. Make findings of face and conclusions of

law clear and concise4. It’s usually better to group sentences

together and number them rather than to state and number each fact or conclusion as a separate sentence.

5. Recite only those facts and legal authorities that are relevant to the issues and necessary to your ultimate decision.

6. Try not to be redundant, repetitive, or duplicative unless you need to emphasize a key point.

7. Have someone else proof your spelling and grammar, if possible.

May it please the court

It’s YOUR decision

QUESTIONS

REFERENCES

Drafting Judicial Opinions

Ruggero J. Aldisert, Opinion Writing (1990). Crafting judicial opinions (trial and appellate) American

Bar Association, Judicial Opinion Writing Manual (1991). Crafting opinions, the format of an appellate opinion, citation

format and writing style Joyce J. George, Judicial Opinion Writing Handbook (4th

ed. 2000). Writing judicial opinions, trial and appellate, ethics, process, writing technique, word usage, the role of the law clerk, criticism of judges and their opinions

Norman J. Singer, Statutes and Statutory Construction (6th ed. 2000).

Excellent resource for issues of statutory constructionCredit William Taylor Muse Law Library, University of Richmond School of Law Research Guide

Grammar

Veda R. Charrow et al., Clear & Effective Legal Writing (3d ed. 2001).

Grammar review and exercises located in appendixBryan A. Garner, The Elements of Legal Style (2d ed. 2002).

Patterned after Strunk and White’s Elements of Style, punctuation, word

choice, grammar syntax and matters of form

Bryan A. Garner, The Redbook: A Manual on Legal Style (2002).

Commas, semicolons, other punctuation marks, capitalization,

type face, citation format, memos, motions, briefsLaurel Currie Oates et al., The Legal Writing Handbook: Analysis,

Research and Writing (3d ed. 2002).Detailed resource on writing memoranda and briefs with

chapters on grammarWilliam Strunk, Jr. & E. B. White, The Elements of Style (1979).

Old standby; excellent resources on grammar and usage

Books

Ruggero J. Aldisert, Opinion Writing (West Publg. Co. 1990).

Elizabeth Fajans, Mary R. Falk & Helene S. Shapo, Writing for Law Practice 337 (Found. Press 2004).

Bryan A. Garner, The Redbook: A Manual of Legal Style 435 (2d ed., Thomson West 2006).

Joyce J. George, Judicial Opinion Writing Handbook (4th ed., W.S. Hein & Co. 2000).

HOW TO WRITE GOOD LEGAL STUFFEugene Volokh, UCLA & J. Alexander Tanford, Indiana Univ – Bloomington 2001

This is an excellent

guide to good legal

writing. According to

the authors, good

writing consists of

avoiding common

clunkers and using

simpler

replacements. The

replacements aren't

always perfect

synonyms but 90%

of the time they're

better than the

original.

Read their 10 Signs of

Bad Legal Writing and

Dictionary of Legalize

http://www.law.indiana.edu/instruction/tanford/web/reference/ow2write.html

References: Punctuation, Usage, and Styles

Free Online Resources

Judicial Writing Manual, Federal Judicial Center (1991, 56 pages)

http://www.fjc.gov/public/pdf.nsf/lookup/judiwrit.pdf/$file/judiwrit.pdf

Other information is also available from the Federal Judicial Center website:

http://www.fjc.gov/public/home.nsf

Free Online Continued

Ethical Judicial Opinion Writing by Gerald Lebovits, New York Law Schoolhttp://works.bepress.com/gerald_lebovits/118/

NEW JERSEY MANUAL ON STYLE FOR JUDICIAL OPINIONS, REVISED AND

APPROVED BY THE SUPREME COURT OF NEW JERSEY, 2004

http://www.judiciary.state.nj.us/appdiv/manualonstyle.pdf