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Posner to Judges: Semper Scribo Simpliciter Sodes

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By Jonathan R. Tung, Esq. on May 23, 2016 6:51 AM

Three cheers for perennially popular federal Circuit Judge Richard Posner of the Seventh Circuit who took the time, once again, to stand again on his soap-box decrying legalese in court opinions. The judge lamented overly prolix sentences and wordplay in court opinions. We admit, the habit is hard to break.

Posner's most recent anti-jargon pontificating comes as no surprise: Posner has long been a maverick in the legal community calling for the abolishment of some of the profession's more prized institutions, the Bluebook.

Where the Concurrence Matters More

Every so often a court opinion's minority views garner more attention and review than the majority's views. In this particular case before the Seventh Circuit, the federal court upheld a lower district's conviction of a man who sold illicit chemicals that were used in prescription drugs. In this case, Posner agreed with the majority's analysis and conclusion, but couldn't help inserting additional commentary about how "opaque" the majority's language was.

"Abuse of Discretion"

A little personal commentary of my own: I've always had some issue with the different standards of appellate review -- de novo, plain error, abuse of discretion, etc. Apparently, Posner isn't a fan either. "If the appellate court is persuaded that the trial court erred in a way that makes the trial court's decision unacceptable, it reverses," he said. What has discretion to do with it?"

Moreover, the term 'abuse' is too strong a word to characterize a disagreement between presumably competent judges, Posner argues. On this point, we're inclined to agree. After all, 'abuse' has been used to describe decisions of lower courts that simply looked to be a good-faith mistake. We at FindLaw can easily think of many other cases where 'abuse' could be more aptly applied.

Interview With the National Law Journal

Posner recently sat down with the National Law Journal to discuss judicial writing. In general, he vented about his distaste for terms and words like "narrow tailoring," "instant case" and "arguendo."

"They imbibe all this stuff at law school because the professors, they're immersed in the same culture and I don't really think it's a healthy culture," Posner said. He called for persons to express themselves clearly with day-to-day vocabulary.

Down With Keystrokes!

We'd love nothing more. Being presented with the task of reading half a dozen circuit cases a day, it would be the greatest gift of all for judges and their clerks to halt the use of words and terms like sub judice" and "de minimus non curat lex." Enough, already!

Here's to simplicity.

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