[Buffymommy]

PART 2

(Opinion by Judge Farmer.)

I. Foreword
Once there was a maverick law Professor who denounced all legal writing. He said there were two things wrong with it: its content and its style.1 This was more than 70 years ago.

Judicial writing is still a prominent form of legal writing. Most of it is dreary and tedious. As he said, opinions are filled with “long, vague and fuzzy words.” Another critic has described them as “wordy, unclear, pompous, and dull.”2 Their style comes from the law reviews, the very one the maverick professor found ponderous and obscure.

A surprising number are way too long. There is often a painstaking account of background and trial which turns out to be unnecessary to grasp the essential issues to be decided. Many have extended discussions of rules and principles no one really challenges, or few would dispute. Judges pile on needless details of date, time and place, modified by confusing identifying terms (appellant-cross appellee-defendant) without regard to clarity. Extended comparative quotations alternate with exposition of one sort or another. Legal issues are analyzed through mind-numbing, many-factored “tests”. Each factor is unloaded nit by nit, as though the judges actually decided the dispute in precisely that way. Arcane legal terminology is woven in and out, even though simpler, plainer words could be used. Simplicity, tone, style, voice, personality, levity -- all are shunned.

I admit that I too have made a generous contribution to this legal ennui all by myself. I can hardly deny my contributions -- as this (with its footnotes) attests. My worst offenses came, I hope, when I was newer to this game. But now I wish to make a good act of contrition, do some penance, and offer an explanation for the opinion I prepared for the court in this case.

From the very moment of my appointment as a judge, I have chafed under this norm for appellate opinion writing. How did it become conventional? Who made it required? Why hasn't it been changed?

I struggled against it. There must be other styles, different tones, alternate voices. Not for every opinion. But for some.

One technique occurred to me. This idea would have an opinion in some of the forms, styles and characteristics associated with fiction. Good fiction is set in human experience. Good fiction illuminates. Fiction's style may yield questions, but the right questions can lead to discovery of truth.

A judge would use this style with restraint and propriety (of course). But in some cases such a style could be better suited to explain an outcome. A light fictional tone could express not ridicule but the heavy strain on logic or principle raised by some contentions in some contexts. In fact, this very case seemed appropriate to convey the essential idea. Although the argument is not frivolous, a lighter, story-like tone could better reveal the reasoning behind the result. This style would portray the inherent defect in the argument and in the process make legal reasoning vivid, law's result apt.

One prominent judge separates opinion writing into a “pure” form and an “impure” form. The former is the traditional version and the latter an occasional nonconformist form.3 He explained:

“The pure style is an anodyne for thought. The impure style forces -- well, invites -- the writer to dig below the verbal surface of the doctrines that he is interpreting and applying. What he may find is merely his own emotions. . . . But if the judge is lucky, he may find, when he digs beneath the verbal surface of legal doctrine, the deep springs of the law.”4

It is not that one style is best. The judge chooses the one or the other because:

“If you are the kind of judge who thinks that the considerations that bear on a judicial decision range far beyond the canonical materials of formalist legal thought -- if you think that values (not just “feelings”), history, and policy are legitimate considerations -- you will find the ‘pure' style confining because it is not designed for the expression of those considerations. To the impure poet, ‘nothing that is available in human experience is to be legislated out of poetry.' Substitute ‘law' for ‘poetry' and we have the credo of the ‘impure' judicial stylist.”5

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago. I had decided that the style of some opinions could -- and should -- be unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.

When the panel conferred after oral argument, I did not detect any disagreement. While there was -- how shall I say this? -- an engaging air about a Derby-Preakness winner contending that a newspaper article caused the horse to lose the Belmont and the Triple Crown, even still there was yet within a serious aspect. The opinion had to show that the false bravado behind the certainty of the ten-dollar window6 is not enough legally to make damages probable. So after thinking on the matter, I conceived of an unconventional approach. I would try a style, a tone, a voice to make apparent even to non-lawyers what I believed is the basic defect in their argument. The very style of the opinion itself would illuminate the legal analysis and outcome.

As it turns out, the other two members of the panel could not endorse the opinion or even some slightly altered version. They had concerns. Some other judges shared them. So I give this explanation for what I wrote, laying my version along side the panel's substitute. Readers can compare a conventional opinion with an unconventional style -- the pious with the impious.

II. Opinion
The Backstretch
The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.

Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey's hand, some illegal electric thing, maybe to spark the horse. Turns out the paper was seeing a fantasy in a shadow and retracted the story. But the noise had already begun. Are we looking at a Triple Crown horse?

Then the horse won the Preakness Stakes. And it's not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.

Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that's real sincere? Even about a third guy who knew this is the horse's time because his father's jockey's brother's a friend?7

Whatever. It's a lock. Two jewels for the Crown. Make room for the third.

Only, wait a minute. Did I hear another story about this one guy who wasn't so sure? Said it all depends if it rained last night?8

Anyway for the rest it's money in the bank. Everyone makes the horse the winner, so why worry about the race?

The horse did not win the Belmont Stakes. Yeah, he finished in the money, best he could do was show. Third place brings some money but not like a win.9 And it definitely doesn't make the Crown. The guys in the stories were wrong.

Except maybe the one. It was a sloppy track. You sure it didn't rain last night?

Anyhow the horse sues the paper. Says the false report in the Miami paper damaged him. Paper says name your damages. Allow me to clarify, says he. Belmont purse is $1 million. Collaterals bring another $5 million. So I'm out $6 million.

But the steward in the court saw an illegal substance in the damages and disqualified them. The horse now wants the judges to let him back in.

The judges think it rained last night.