Legal Writing

Colorful judicial writing style undermines legitimacy of opinions, law prof argues

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Judges who write colorful opinions that are lively and engaging are undermining the integrity of the judicial role and the legitimacy of opinions, a law professor has argued in an upcoming law review article.

“Judicial opinions should conform to an even-keeled, impassive and even formulaic institutional style,” wrote Nina Varsava, a professor at the University of Wisconsin Law School.

Varsava’s article will be published in the Houston Law Review, Alison Frankel reports in an On the Case column for Thomson Reuters. Varsava told Frankel that part of her aim “is to make people think about what we mean by a well-written opinion.”

Varsava argued that judges who strive for stylish writing are more likely to be disrespectful or unfair to litigants who aren’t characters in a story. That kind of writing can conflict with judges’ duties to be impartial, she said.

“An opinion in which the facts are arranged into an engaging story may well be more compelling than one in which the facts are relayed dryly and impassively,” Varsava wrote. “To make a compelling narrative out of a case, though, a judge may have to shape the individuals involved into good guys and bad guys and to gloss over facts and law that would go against the good guys.”

Parties to a legal dispute have a right to think that their arguments were taken seriously, and that happens when judges use opinions to communicate facts and factual interpretations that favor each side.

“But this kind of balance does not lend itself to the ‘strong dramatic arc[s]’ that many commentators want to see in judicial opinions,” Varsava said, quoting a legal writing expert.

Varsava said judges are widely encouraged to write in a lively, individual style, and journalists are part of the problem. As an example, she cited an ABA Journal headline that read, “Gorsuch writes reader-grabbing opinions with fact summaries that are ‘a form of wry nonfiction.’”

The story, published before Justice Neil M. Gorsuch was confirmed to the U.S. Supreme Court, cited an appellate opinion in which Gorsuch wrote: “Haunted houses may be full of ghosts, goblins and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft. But as these things go, this case no longer involves Mr. Hodges. Years ago, he recovered from his injuries, received a settlement and moved on. This lingering specter of a lawsuit concerns only two insurance companies and who must foot the bill. And at the end of it all, we find, there is no escape for either of them.”

While commentators “wrote enthusiastically” about Gorsuch’s style, the sources didn’t discuss the legal analysis, Varsava said.

Varsava said Gorsuch went on to give more details about the incident, which seems to serve only for dramatic effect in an “otherwise dry and banal dispute between insurance companies.” The narration “distracts from the live legal issues, compromising the opinion’s guidance value,” she wrote.

Varsava also cited an opinion by Justice Elena Kagan concerning the admissibility of evidence obtained through a dog sniff. The sniff “was up to snuff,” Kagan wrote.

That’s a nice turn of phrase, Varsava said, but it seems to make light of the case in which a defendant was sentenced to two years in prison based on the evidence found.

“Narrative and literary flair in judicial opinions admittedly have potential benefits—making the law more accessible, for example, and possibly even more likely to be accessed,” Varsava wrote. “But the potential benefits of aesthetically pleasing and narratively persuasive opinions have ethical costs: a judge’s efforts to please, entertain and persuade can interfere with fundamental judicial duties, including those of impartiality and candor, and can compromise the legitimacy of the adjudicative process.”

Varsava considered possible mechanisms that could take some of the flair out of judicial writing, including a proposal to prohibit judges from signing their names to majority opinions. Such a change could reduce judges’ incentive to stand out stylistically and increase incentives to focus on the legitimacy of the court, she argued.

Hat tip to How Appealing.

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