Opinion

The writing of appellate opinions has been developed by modern courts into a high art, and it is not an easy one to master. Because many of The 100 are likely to be considered for appellate positions at some point in their careers, they should be prepared with at least the basic information necessary to the writing of an acceptable opinion.

Opinions in today’s courts are essentially modular: they are built of predetermined sections assembled in a standard order. This review will therefore examine each of those sections, their contents, and how they relate to one another.

The Caption

The first part of the opinion is the caption. Unfortunately, the caption leaves little room for the play of judicial imagination. Because the changing of names is largely controlled by statute, it will be necessary merely to copy the caption from the briefs. The question whether the court can find certain names unconstitutional sua sponte, however, is no doubt the subject of a forthcoming law review article, and it would therefore be unwise entirely to give up hope.

The Introduction

The introduction is a summary of what the case is about; it should highlight the issues before the Court. It often contains a statement of the court’s jurisdiction, for reasons science has not quite discovered. The introduction normally signals the court’s disposition of the case if that disposition is routine and unimportant. If the opinion drops major bombshells on established law, however, it is best to save the surprise for later.

The Facts

The next section is a statement of the facts of the case. It is not necessary that the facts recited correspond entirely with the actual facts but they should be consistent with the intended moral. You will often have an excuse, since many appeal briefs include all dates, times, places, and parties’ mothers’ maiden names but don’t quite reach the facts that should be dispositive. Too close a reading of the briefs is discouraged in any event, being hard on the eyes.

The Law

This is the most important part of the opinion. No casebook will print it unless it contains a thorough summary of existing law, along with a description of all the significant cases. Therefore, your only chance for immortality is to write a good Law section. As with all writing, keep your audience in mind. You’re not writing for the parties—they only care who wins and loses; you’re not writing for the court below—it only cares about being affirmed; you’re writing for the ages. Remember, Ben Cardozo would be just another dead white male if he weren’t in the casebooks.

But this is also the most difficult part of the opinion. This is where you have to provide a basis for what you do with the case. How lawyers react to your opinion—whether they say ‘This is a well-reasoned decision’ or ‘What the hell has that moron done to the law now?”— depends on how well you set them up for it in the Law section; after reading it, the lawyer should have a fairly good idea of how the case should come out if you truly apply the facts to the law. Here, therefore, is where the “catch” comes, where the hand is quicker than the eye, where lead is turned to gold. The problem is that a summary of existing law and a description of the significant cases would often lead to a resolution that isn’t the one you want—and, despite all the breast-beating to the contrary, judges really don’t like to be caught changing the law. Fortunately, there are at least two common techniques available to help.

If you are lucky, you will find an old case that was wrongly-decided. Emphasize that case, so that it seems to be either the leading case or at least a typical case. Don’t mention that it was wrong at the time: this omission implies that it was right. A disposition consistent with that old case will now seem

correct. This allows you to treat with gentle disdain the loser’s argument that you aren’t following the law; the old case did it, therefore Arizona law has done it for years, therefore you aren’t changing anything. The opinion actually overturns most of the precedent, but you needn’t mention that until a few cases from now. It will then be safe to point to this case as the one that changed the law, to rebut the charge that you are doing so in that one. This is judicial judo: you use one old, weak case to flip the law on its head.

If you can’t find a wrongly-decided case then you will need to use the other technique, which is to reinterpret the leading case. “Reinterpret” means to reveal that it meant something other than what everybody (including, quite possibly, you) thought it did. With luck, the leading opinion will be one of your own; you will of course have built into all your decisions sufficient flexibility to cover subsequent changes of mind, heart, and political circumstance. Ancient cases—i.e., those decided before about 1970—may present bigger problems since courts in those unsophisticated days sometimes said what they really meant. Keep in mind, however, that it is only right and proper that the meaning of old cases should change as the mood strikes you, like that of old Constitutions. After all, the beauty of the common-law system is that we can change the rules as we go along to ensure the result that makes us happy this week.

Discussion and Decision

This section applies the facts to the law, to reach the result. This part of the opinion is written first, so that you will know what the Fact and Law sections will need to say. In other words, an opinion is written like a mystery novel: write first how it turns out, then what you need to get there.

But the Discussion section does more than merely consider facts and law; it introduces the other critical aspect of the opinion — the Factors. All opinions should have Factors. Factors are fact-specific criteria that are/are not (pick one) important in this particular case and may/may not influence its outcome. Factors should appear to be drawn from the case law but basically you make them up. You will want to have several of them, so that you can use each to its best advantage; that is, in any given case you use the ones that help you and indicate that the others, for reasons you need never quite make clear, are not dispositive. Most Factors must be entirely subjective, though a few should seem at least semi-objective (e.g., “the interests of the forum”). A very few can truly be objective, so long as they are politically correct. For example, if the question is whether a landowner’s relationship to the independent contractor of a trespasser's adopted child is such as to create a legal duty, one Factor can be whether the landowner has insurance. What insurance has to do with relationships is called Public Policy.

And that is the beauty of the Factors. They implement Policy in a way that almost looks like real law. Policy is what we all use when logic fails. If you’re tired and your kids ask you for the tenth time why they have to do something, you may resort to “Because I say so.” That’s Policy. But emotion and personal preference are not things that should appear on the face of the opinion, so try to use words such as “applying” or “analyzing” the “factors” so that the process seems similar to “applying” or “analyzing” the law.

Explicit discussion of policy should be kept to a minimum, and saved for the last paragraph of the section. It should seem like an afterthought, something you have serendipitously found to be consistent with what you say is the law.

The only other thing to remember in the Discussion section is the phrase “caseby-case basis.” Never decide anything on other than a “case-by-case basis,” no matter how clear or basic the issue may be nor how badly the profession and the public need guidance on it. This has several advantages. First, it relieves you of the necessity of addressing the inconsistencies, loose ends, and obvious impossibilities that result from your reasoning; announce that you will deal with them later, on a you-know-what basis. Second, it gives you room to decide an identical case differently the next time if you want to. Third, it keeps you in business, since everything is now subject to reversal on appeal.

Disposition

This is a short procedural section, sometimes just a sentence. Only the touchingly innocent believe it to be a largely technical matter. Whenever possible, remand for further proceedings; this lets the court below share the blame. When not possible. do it anyway and let the lower court figure out how to fix the resulting mess. That leads to more briefing, and therefore more money for the lawyers.

Signature

After the disposition come the signatures. Your signature is important in routine cases because it is as close as you will ever come to the opinion. It is important in major cases because if you don’t sign then you will need to write a dissent, which means extra work; it is always best, then, to sign.

Dissent

If you dissent too often, people will take you to be either an exceptional genius or an exceptional jerk, so you take your chances. But it is a good idea to dissent occasionally so that people won’t think you’re just out playing golf all the time.

The best time for a dissent is when you have written an opinion for the Court that the majority won’t buy. Simply replace the Introduction section with the words “I dissent’ (“respectfully” has become an optional item) and replace the Disposition section with the sentence “Therefore, I dissent” (or, if you prefer Romantic meter, “I therefore dissent”).

Conclusion

As you have long suspected, producing an appellate opinion isn’t something that need occupy much of your time or intellectual attention. If you still have any fears, talk to your friends who were appellate clerks after law school and have done it themselves: it is perfectly possible to write an opinion long before you have any slightest idea what you’re doing. The process will be even easier, however, if you follow these few simple guidelines.