The Seven Writing Strategies of Highly Effective Trial Judges
Asked
to name the world’s best opinion writers, traditionalists might rattle
off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists
often prefer Antonin Scalia or Richard Posner. And the trendy might cite
new kids on the block like Lord Sumption or Elena Kagan.
Those august names all deserve heaps of praise. But the fame that
these judges enjoy raises questions of its own: Can you write a “great”
opinion if you’re a judge who’s not a household name, or even especially
influential? And can you write a “great” opinion in a case that’s not a
high-profile constitutional crisis, but just another run-of-the-mill
dispute in an overflowing docket?
I say “yes” on both counts. No matter how routine a case, and no
matter how little time you have, you can write a great opinion. It may
not be “great” for the ages, but it can offer readers a clear,
accessible, and easy-to-follow analysis of your reasoning, with even a
bit of flair or personality for good measure.
Let’s consider an example from a humdrum sanctions dispute: a routine order written by bankruptcy judge Benjamin Goldgar of the Northern District of Illinois.[1]
Judge Goldgar is well regarded but hardly a household name, and the
underlying subject matter is anything but sexy. If we dig into this
terrific example of trial-judge writing, we can unearth seven key
strategies that the name-brand judges use in high-profile opinions as
well.
First Strategy
Easy Listening: Orient the Reader With a Narrative Opening
Judges often admonish lawyers to “tell a story” in their motions and
briefs, but many judges could follow their own advice in their
opinions. Most opinions start with an anti-story—a stiff, formulaic
passage larded with citations, dates, defined terms, and causes of
action. If you’re not intimately involved in the case—and perhaps even
if you are—you’re lost after just a sentence or two.
Yet opinions need not start so stiffly. Take the opening of Judge Goldgar’s order:
Denton Jackson is one of the most active consumer bankruptcy attorneys in this district, filing nearly 8,000 cases from mid–1996 to the present. More than once, though, Jackson’s efforts to get paid have drawn the court’s attention and resulted in sanctions. Now he faces sanctions again. Earlier this year, seven bankruptcy judges issued orders asserting that Jackson had filed false applications for compensation as counsel for the debtors in 317 pending chapter 13 cases. The applications were false, the orders said, because in them Jackson represented that he had entered into the court’s form retention agreement with the debtor, entitling him to receive a fixed fee of $3,500 (a “flat” or “no look” fee), when in fact he had modified the agreement to charge additional fees. The orders required him to show cause why he should not be sanctioned for violating Bankruptcy Rule 9011(b).
This accessible opening features both the substance and the style of a true narrative.
First, the substance: The paragraph is built through a who-what-when-why-how exposition that draws the reader in by introducing the dispute and answering core questions.
And second, the style: Goldgar’s fresh, confident language is easy on the eye and ear. Not “on more than one occasion,” but “more than once.” Not “obtain payment,” but “get paid.” Not “however,” but “though.” Not “at present,” but “now.” He also sprinkles in some strong, active verbs: “drawn” and “faces” as well as “filing” and “entitling.”
And yet his style also stands out for what is absent: no dates, no
citations, no defined terms, no “regarding” or “concerning,” and, thank
goodness, no “the instant dispute.”
In other words, we have the makings of a real story here—perhaps even one that you’d like to keep reading about.
Second Strategy
Time Travel: Strip Away Needless Dates
When I ask judges what they hate about briefs, the cry of “too many
dates” often tops the list. Certainly some dates are necessary, but most
are not, I’m told. After all, say these judges, it’s painful to read
sentence after sentence that starts with “On October 21, 2008,” “On
October 23, 2008,” “On October 29, 2008.” But guess what, judges: the
same is true of opinions! One solution: As with briefs, an easy way to
make opinions more readable is to replace some of the exact dates with
words and phrases that explain what happened, in what order, and for how
long. Goldgar gets it:
In May 2010, attorney Denton Jackson filed a chapter 13 bankruptcy case [] for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.”Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor (a copy of which Jackson had filed on the petition date) attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
Judges of the world, declutter!
Third Strategy
Order Out of Chaos: Use Bullets and Numbers for Clarity
One
of the best techniques for any lawyer or judge is to “translate”
complex facts or arguments into a reader-friendly form. Your best
friends here are bullet points and numbered lists, and Goldgar makes
good use of both.
In relaying the facts, for example, he uses a clean set of bullet
points to relay what most judges would have clumped together in a single
tedious paragraph:
The addendum [to the Model Retention Agreement] went on to describe six charges for which the debtor would be liable:
- “[L]ate fees of 18 percent per annum from the date below plus reasonable Attorneys fees and court costs” for “any balance due Attorney which is overdue 30 days or more”
- A fee of “$65.00 . . . for processing each NSF check” presented for the payment of attorney’s fees.
- Attorney’s fees at Jackson’s standard hourly rate . . . .
And later, in his conclusions of law, Goldgar numbers his list of reasons for rejecting the sanctioned attorney’s assertions:
These assertions [] will not wash. First, they are factually inaccurate. As discussed earlier, Jackson did not use the [Model Retention Agreement] with the addendum “openly,”. . .Second, Jackson’s assertions are legally irrelevant. Again, an attorney’s Rule 9011 obligations are non-delegable. An attorney has a personal responsibility . . .Finally, Jackson contends that the court’s General Order 11–2 issued in March 2011 confirms the reasonableness of his belief that his statements were true. According to Jackson, the General Order . . .
Fourth Strategy
Take Me by the Hand: Sprinkle In Precise and Varied Transitions
I
might be a broken record when it comes to how the better advocates
favor lighter and clearer transitions, but that doesn’t make the point
any less true! And you know what I’m about to say: The best judges are
just as keen on choice transitions as the best lawyers are. You can get a
taste of what I mean by looking at a single Goldgar paragraph. His
transitions are varied in length, diction, and even placement—few are
weighing down the start of sentences, especially not “however” and
“therefore”:Jackson, however, claims otherwise. He contends, first, that he did in fact enter into the [Model Retention Agreement] in each case, and the representation in each form fee application was therefore “true in its literal sense.” Not so. Certainly, in each case Jackson and the debtor signed the document, and in no case did Jackson and the debtor alter the document physically by inserting or deleting terms on any of its pages. But the addendum Jackson admits using in conjunction with the MRA added terms that changed the compensation to which Jackson was entitled in the bankruptcy case. The addition of those terms in a separate document modified the MRA, making it a different agreement, as much as if they had been written into the MRA’s own margins. Having added those terms, Jackson could not truthfully represent to the court that he had entered into the MRA. At best, the representation was a half-truth, and a half-truth “can be just as misleading, sometimes more misleading, than an absolutely false representation.”
(That said, I’m not a big fan of using “certainly” to introduce a
concession. For alternatives, consider “To be sure” or even “True
enough.” But I much appreciate the quick short sentences like “Not so”
and the varied sentence structure.)
Fifth Strategy
Lighten Up: Replace Stale, Stodgy Language with Short, Fresh Words
So much of what makes for great style comes down to a micro-level
struggle to find short, punchy language for long-winded, abstract
thoughts. In the passage above, for instance, rather than “But
the addendum Jackson admits using,” Goldgar could have written
“However, the addendum Jackson admits using,” yet that would have
dragged the sentence down. And elsewhere, he could have written
“Additionally, the responsibilities of the attorney were not limited to
those specified,” but instead he began with “Nor were the responsibilities of the attorney limited to those specified.” Light is right.
Throughout his opinion, in fact, I spot a love for crisp language and
an aversion to the bureaucratic clichés that mar so much legal writing.
Here’s my Goldgar-gleaned ten-tip cheat sheet:
1. After, not “subsequent to”
After the December 2010 show cause order suggested his conduct was sanctionable . . .
2. Also, not “moreover” or “additionally”
The addendum also stated that it was “retroactive to cover . . .
3. As for, not “with respect to” or “with regard to” or “regarding”
As for Jackson’s claimed lack of intent to mislead, the test under Rule 9011 is objective, not subjective.
4. Even if, not “even assuming” or “assuming arguendo”
Even if Lanner had been knowledgeable on these subjects, moreover, and even if he had advised Jackson about the veracity of the fee applications . . .
5. Here, not “in the instant case” or “in the present case”
The equitable considerations here point to a severe sanction.
(To avoid dragging the sentence down, put “here” near the verb as Goldgar does, not at the beginning of the sentence.)
6. Shows, not “demonstrates”
The problem for Jackson is that the record shows he consulted Lanner about fee agreements other than the [Model Retention Agreement].
(Just add a that after shows for clarity: “the record shows that he . . .”)
7. So, not “therefore” or “consequently” or even “thus”
The fees for reopening the bankruptcy case [] were fees charged only “after the case [was] closed” and so, Jackson contended, were outside the MRA.
8. Those (or this or that or these), not “such” or “said”
The addition of those terms in a separate document modified the [Model Retention Agreement], making it a different agreement, as much as if they had been written into the MRA’s own margins.
9. To, not “in order to”
To be sanctionable, a misstatement or omission must be more than an innocent mistake; in making the misstatement or omission, the attorney must have been “culpably careless.”
10. Under, not “pursuant to”
Under Rule 9011(b), an attorney or unrepresented party who presents to the bankruptcy court any “petition, pleading, written motion, or other paper” makes four certifications to the court.
Sixth Strategy
I’m Only Human: Aim for the “Impure”
Judge Posner splits judges’ writing styles into pure—“lofty, formal, imperious, impersonal”—and impure—“direct,
forthright,” “informal, frank, even racy.” Posner’s own style is
notably “impure,” and so are the styles of most of the world’s
best-regarded opinion writers, from Lord Denning to Chief Justice
Roberts.
Although the “impure” style can spill over into disrespect or
self-indulgence, as long as you avoid the “even racy” part of Posner’s
formulation, a frank and informal tone can make for a more enjoyable
read and a more candid feel.
That very sort of personal touch pervades Goldgar’s entire opinion, a
feat that is all the more impressive because the issues before him are
so dry. Here are just a few of the ways he enlivens the tone of his
opinions through fresh, colloquial language:
Flat fee systems are flexible enough, however, to take into account that unusual animal, the complex or involved chapter 13 case.Jackson’s misrepresentations to the court were quite serious, far worse than simply checking the wrong box on a bunch of forms.If, as he now says, he did not actually intend to conceal anything or mislead anyone, he should certainly have realized that was the effect. The call is not even a close one. All told, Jackson’s moral compass badly needs repair.Jackson gets no points for consulting counsel over a different ethical problem.But Jackson’s “corrective action” was half-hearted at best. He filed amended MRAs in only thirty-three cases and withdrew fee applications in only eighteen. In several instances, moreover, Jackson added insult to injury by committing yet another set of Rule 9011 violations.
Seventh Strategy
Spice Girl: Exploit Marks That Add Interest and Vary Sentence Structure
Many
trial judges tell me that they just don’t have the time to craft
beautiful and elegant and varied sentences. I get it. But opinions still
don’t need to sound like a dirge, with one medium-long declarative
sentence after another. In that regard, let me share a secret from the
work of the best opinion writers. Spice up at least a few of your
sentences by using a colon for explanations, a semicolon for sharp
contrasts, and a pair of dashes for emphasis. Not surprisingly, Goldgar
uses all three techniques:
Colons for Explanations
Lanner added that after he complained to Jackson about the addendum, Jackson filed what purported to be an amended [Model Retention Agreement] without the addendum that was merely an altered version of the original: Jackson had written the word “amended” on the first page and crossed out the phrase “see attached addendum,” but the “amended” MRA still bore the original date and signatures.A review of the dockets discloses that in thirty-three 2010 cases, he filed an amended MRA with no addendum attached. In ten of those cases, however, the amendments were unilateral: Jackson simply wrote in the word “amended” on the first page and crossed out the phrase “see attached addendum” on a later page.
Semicolons for Contrasts
(In three of the ten cases, Jackson later filed genuine amended MRAs with new dates and signatures; in the other seven, he did not.)
And, of course, no attorney is ever required to participate in the flat fee system; a traditional fee application with a detailed itemization of services can always be filed.For starters, Jackson did not consult Lanner about using the addendum with the [Model Retention Agreement]; he consulted him about using the addendum with other ‘‘customized’’ fee agreements.
Dashes for Emphasis
If no reasonable lawyer would have thought Jackson’s representations were true—and no reasonable lawyer would have—the “pure heart” he claims is beside the point.
So there you have it. These seven strategies take skill, but they
need not take more time. And with most opinions being such dusty reads,
even a little bit here can do wonders!
What are some other strategies that you like to see in trial-court opinions?
[1] The underlying proceeding is In re Brent. I’ve changed the parties’ names.
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