In this month's Gilbert Submits in today's DJ, PJ Gilbert offers
Avoid Quirky Quarks, where he muses about new PJ Manella's confirmation hearing, Finnegan's Wake, and legal writing:
If nothing else, studying literature and the arts contributes to
literacy and our ability to express ourselves. Not sure that is happening
today. Yes, it's important for judges and justices to have Strunk and White on
hand. But there is something more fundamental that all judges should follow, a
simple principle that bears repeating: "Write to be understood."
Why, I wonder, do some judges think that string
citations improve the opinion? Quite the contrary, they detract. If one case or
statute supports a premise, that is sufficient. Why clutter it with more
citations? To appear scholarly? Footnotes for the most part have become a
repository in need of a suppository. On occasion, a footnote may be useful to
quote a long statute that needs to be cited in full. More often it is a dumping
ground to place a point or principle the writer cannot figure out how to
incorporate into the opinion. Maybe that means it is not necessary. Opinions
are not law review articles. Seldom is it necessary to explore the many
possible avenues to which a variety of legal theories could take a litigant.
Often it is best to pursue speculation in a law review article. The judge's
role is to decide the case. That is what the litigant and the lawyer want. Let
the professors write about what you have written, whether it be praise or criticism.
And one other caution to judges and lawyers. Whether it occurs
in a dissent, majority, concurring opinion or a brief, castigating the
proponent of another point of view, an unfortunate and deplorable staple of our
discourse today, is unacceptable. Disparagement is not a substitute for
criticism. I have read recent dissents that attack the integrity of the
majority. Outrageous! Eschew adjectives. Convince with nouns and verbs.
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