Legal writers can learn a lot from these unparalleled unpublished opinions

  • Print

Judge Reavley

Photo of Judge Thomas Reavley by Baylor Law

When I began clerking for Judge Thomas M. Reavley of the 5th U.S. Circuit Court of Appeals back in 1984–1985, the three outgoing clerks showed me the ropes. Having served on the Supreme Court of Texas for nine years and later appointed by President Jimmy Carter to the 5th Circuit, Reavley had his set and confirmed practices.

The most important thing was to try to master “the Reavley per curiam”—a feat that no clerk had ever fully mastered. It seemed that only the judge himself could satisfactorily write such an opinion. It’s a short, one- to two-page opinion that briefly applies clear law to straightforward facts, achieving great economy by saying no more than necessary. As with all per curiam opinions, they’re unsigned; they’re issued by the entire panel. One main rationale for a per curiam opinion is that the case presents only routine issues that merit no in-depth discussion.

Not every case, of course, can be handled with this kind of brevity. But Reavley has long detested the prevalent judicial habit of overwriting opinions by needlessly rehashing the entire history of an area of law before deciding the case at hand. He believes that many lengthy opinions result from either outsize judicial egos or wordy law clerks ambitious to make their mark by transforming judicial opinions into something resembling bad law-review articles. He also thinks that overlong opinions confuse the state of the law.

And so he developed his own distinctive style of per curiam opinion—succinct but intellectually satisfying, bare-bones but never mystifying. He didn’t waste the reader’s time.

Although any per curiam opinion is by the full panel, lawyers in the 5th Circuit have come to associate these shorter opinions with Reavley, who originated the style in that court. And because he has sat over the years with most of the federal circuit courts, federal practitioners throughout the country have become familiar with the style.

Mind you, they aren’t intended for publication.

They all have a footnote appended: “Under 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.” The opinion that follows is a one- to three-paragraph disposition of about 100 to 150 words.

How it’s done

Time for illustrations. A typical example is the 2015 case of Zeising v. Shelton. Here’s the full opinion:

The judgment of the district court is affirmed because an enforceable oral contract was not mutually agreed upon by these parties. The acquisition, purchase, and terms of the 29 Popeye’s restaurants, how they would be operated and what—if any—consideration and role Zeising would contribute was left wide open. At best, it could be said only that they agreed to agree, but that is not an enforceable contract under Louisiana or Georgia law. See McNeely v. Town of Vidalia, 102 So. 422, 423 (La. 1924); Moss v. Moss, 463 S.E.2d 9 (Ga. 1995). Likewise, Shelton did not have a contract with Dixie Restaurant Group, nor did he owe it a fiduciary duty. Ga. Code § 14-11-304(a). Affirmed.

A year later, the 5th Circuit issued a similarly short opinion in Schexnayder v. Vannoy. In the trial court, Louie M. Schexnayder Jr. had filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure, which can afford a litigant relief from a civil judgment. Successive Rule 60(b) motions—those dealing with the same subject matter on identical grounds—aren’t allowed. Here’s the per curiam in full:

The judgment of the district court is vacated, and petitioner’s Rule 60(b) motion is remanded to that court. Because the federal court has not considered constitutional claims related to the decisions of the Louisiana courts after the Louisiana Supreme Court’s judgment in State v. Cordero, 993 So.2d 203 (La. 2008), the present motion is not successive, but is a true Rule 60(b) motion entitled to be decided. Judgment vacated and motion remanded.

Notice that reasons are always given crisply. The Reavley-style per curiam is never the type of summary opinion that you often encounter. It would never say, in a perfunctory way, “We find no merit in the petitioner’s claims and therefore affirm.” Instead, the Reavley-style per curiam always states one or two cogent reasons for the disposition. That’s an extremely important aspect of it. The reasoning is reviewable by a higher court. But I know of no instances in which a Reavley-style per curiam has been overturned.

Note that these opinions are intended primarily for the litigants and their counsel. They’re not designated for publication. But even if they were, they’re comprehensible to an ordinary legal reader and perhaps even to a broader readership. They’re not so terse as to be laconic.

Nor are these the longer signed Reavley opinions, which often run to many pages. It’s a matter of judgment to know which cases are subject to the shorter style of disposition.

Fewer words, but more work

These opinions are not simply the product of lazy decision-making. They take a good deal of judicial rumination and familiarity with the record. One is reminded of Blaise Pascal’s comment: “I would have written a shorter letter, but I didn’t have the time.”

Although the longer opinion you’ve just read is 118 words, there are judges’ chambers in this country in which each of these opinions would run to over 3,500 words. They would minutely regurgitate the statements of fact (paraphrasing the briefs); would include lengthy stock paragraphs on the standards of review; would recite the history of such claims in the relevant jurisdiction involved; would explain the current state of the law regarding such claims; would detail all the claims made by the appellant and all the counterarguments made by the appellee, no matter how peripheral they might be; and then would finally get around to the disposition of the case.

Lots of judges write long opinions that are never read by anyone—not even the litigants involved. Many of these judges get behind in their work, so they or their clerks begin writing before giving much thought to the decisive rationale. Paraphrasing the briefs, they “knock out” the preliminaries (in perhaps 3,000 words) before even starting to think about the result and its rationale. I say that’s backward.

Whenever I teach judicial-writing seminars—as I’ve now done for nearly two-thirds of the states as well as many federal courts and agencies—I recommend that the judges consider the Reavley-style per curiam for perhaps 25% of their cases. There’s a danger, of course, that a given judge might not have the legal acumen of Reavley. But at least that type of judgment is something all judges might aspire to.

Courts are in danger of being overwhelmed by caseloads. Judges from one state appellate court told me their predecessors had fallen so far behind some years ago that all briefs in all cases had to be “warehoused” upon filing. Long after the backlog started, no human being would see the briefs for the first 18 months after they were filed, they said. The backlog was that bad.

If delays in the law are odious, as the old maxim says, then it really is sometimes more important that cases be decided than that they be decided correctly. But it’s always best if they’re decided correctly and swiftly. In my view, Reavley shows us how to spend more time thinking and less time writing.

Bryan A. Garner is the editor in chief of the new 11th edition of Black’s Law Dictionary, author of The Winning Brief, the co-author of Making Your Case (with the late Justice Antonin Scalia), and the president of Dallas-based LawProse Inc. Find him on Twitter: @BryanAGarner

Give us feedback, share a story tip or update, or report an error.