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5 Ways Judges Can Improve Judicial Opinions

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By Mark Wilson, Esq. on April 23, 2015 3:58 PM

We love judges, but sometimes, they rub us the wrong way with some bad habits they have in their opinions. Judicial decisions, especially from appellate courts, are working documents for trial and appellate lawyers, who have to cite them for precedent.

Unfortunately, judges can do things that make life tough for the lawyer on the street. We respectfully request that judges think twice before engaging in these practices.

1. Use Headings to Organize

The U.S. Supreme Court doesn't use substantive headings, likely because they want the text of the opinion to speak for itself without any editorializing in what amounts to an organizational tool. But at least they use simple heading formats with bare Roman numerals, letters, and numbers.

That's useful for letting the busy lawyer -- who's skimming this thing, by the way -- know when the Court has changed topics. Judge Richard Posner, adored as he is over here at FindLaw, never uses headings, and as a result, his opinions seem to change abruptly in certain places, because he's changed thoughts. A break and a heading would go a long way.

2. Pleading Paper! Argh!

At the federal trial level, pleading paper is still a thing. At appellate courts? Not so much. As with many typographic anachronisms, pleading paper has got to go. When was the last time anyone citing to a line number? And furthermore, once you insert a block quote or anything else that's not double-spaced, the numbers are out of alignment and become useless.

Judges of the world, unite! Get rid of the pleading paper menace!

3. Don't Bury the Lede

Practitioners aren't reading judicial opinions like they're novels, with an unfolding story line. They're billing by the hour and need to know whether a case is good for them or not right at the beginning. Unfortunately, many judges don't say right up front what the disposition of the case was, instead making lawyers go all the way to the end (or maybe even somewhere in the middle) to figure out what happened.

4. Use Real Names

Referring to parties by their designation (plaintiff, appellant, petitioner, etc.) can get confusing, especially at higher levels of court, where the plaintiff in one case is now the appellant, but the appellee becomes the petitioner one level up, and one court uses "plaintiff," but another uses "appellant" ... it's nightmarish.

Rather than use labels, which judges used to do in the 19th century to remove humanity from their opinions, just refer to the people involved by their names. That way, everyone knows what's going on.

5. Write in Plain English

Honestly, judges are better than ever at writing in plain English rather than in stilted legal language (just head on over to any of the Supreme Court's nineteenth century piracy cases to see how far we've come).

But they can still do better. Law students and practitioners learn to emulate the kind of writing they see in judicial opinions. If judges want to read briefs that are free of legalese and poor syntax, then they need to set an example by writing the kinds of things they want to read.

Hop to it, Your Honors! Er, may it please the court, hop to it?

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