Ross Guberman - Point Taken - How to Write Like the Worlds Best Judges

Ross Guberman

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Library of Congress Cataloging-in-Publication Data

Guberman, Ross, author.

Point taken : how to write like the worlds best judges / Ross Guberman. 1st edition.

pages cm

Includes bibliographical references and index.

ISBN 978-0-19-026858-9 ((pbk.) : alk. paper)

eISBN 978-0-19-026860-2

1. Legal briefsUnited States. 2. Legal composition. I. Title.

KF251.G83 2015

808.06'634dc23

2015004449

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To Heidi, Sean, and Meghan

Going bold on judicial opinions is the spark behind this book. And I have no qualms about doing so. Although the State stamps its imprimatur on even the most mundane decision, opinion-writing has long been a free-for-all, if not a Sahara, as Justice Benjamin Cardozo once put it. To help save judges from permanent exile to the desert, this guide will transform the work of some of the worlds best judges into a concrete step-by-step method accessible to judges at all levels and across jurisdictions.

In some ways, extracting a strategy for great opinion writing was harder than my earlier work dissecting great written advocacy. In many countries, publicly available decisions are rare. Academics commenting on the bench care far more about jurisprudential theory than jurisprudential craft. And judges almost never get feedback on their writing. For all these reasons, the worlds judges face fundamental fuzziness on the end game: For whom is a judgment intended? And whose voice should it adopt?

Judge Learned Hand once mused about these questions in a conversation with his clerk, Archibald Cox, who would become the famed Watergate prosecutor. To whom am I responsible? Hand asked. No one can fire me. No one can dock my pay. Even those nine bozos in Washington, who sometimes reverse me, cant make me decide as they want. Everyone should be responsible to someone. To whom am I responsible? Hand paused and then gestured over to a stack of law books. To those books about us! Thats to whom I am responsible!

And yet how on earth do you address a judicial opinion to law books? Even judges need an audience. But which one? Should you address your opinions to the winning party? The losing party? Counsel? An appellate court? As-yet-unnamed judges deciding future disputes? Law students? Academics? The broader bar? The press? The legislature? The general public? Or, as Justice Kirby has put it, the judges own conscience? Do dissents have different audiences? And when it comes to great opinions, does your intended audience even matter as much as your core writing style, skills, and strategies?

Speaking of style, some commentators have pondered the interplay between an opinions voice and what it projects about the judges role in the judiciary and the body politic. Dichotomies are all the rage. The great scholar Karl Llewellyn contrasted the Grand Style of opinion-writing, which breezes along like an essay, with scant authorities and many nods to pragmatism, with the Formal Style, which is wooden and riddled with strings of citations. More recently, Judge Richard Posner, borrowing from Robert Penn Warrens famous formulation about poetry, divided opinion-writing styles into the