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Judicial Opinion Writing: Gerald Lebovits JUDICIAL OPINION WRITING For State Tax Judges October 12, 2018 Chicago, Illinois GERALD LEBOVITS Acting Justice, NYS Supreme Court Adjunct Professor of Law, Columbia Law School Adjunct Professor of Law, Fordham University School of Law Adjunct Professor of Law, New York University School of Law Judicial Opinion Writing For State Tax Judges October 12, 2018 By: Gerald Lebovits Table of Contents Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008).................................................................................... A Gerald Lebovits, The Legal Writer, Ethical Judicial Writing—Part I, 78 N.Y. St. B.J. 64 (Nov./Dec. 2006) ................................................................................. B Gerald Lebovits, The Legal Writer, Ethical Judicial Writing—Part II, 79 N.Y. St. B.J. 64 (Jan. 2007) ........................................................................................... C Gerald Lebovits, The Legal Writer, Ethical Judicial Writing—Part III, 79 N.Y. St. B.J. 64 (Feb. 2007)........................................................................................... D Gerald Lebovits, The Legal Writer, Legal-Writing Ethics—Part I, 77 N.Y. St. B.J. 64 (Oct. 2005) ........................................................................................... E Gerald Lebovits, The Legal Writer, Legal-Writing Ethics—Part II, 77 N.Y. St. B.J. 64 (Nov./Dec. 2005) ................................................................................. F Gerald Lebovits, Judges’ Clerks Play Varied Roles in the Opinion Drafting Process, 76 N.Y. St. B.J. 34 (July/Aug. 2004) .................................................................................. G Gerald Lebovits, Advice to Law Clerks: How to Draft Your First Judicial Opinion, 36 Westchester B.J. 29 (Spring/Summer 2009) ................................................................. H Gerald Lebovits, The Legal Writer, Tanbook, Bluebook, and ALWD Citations: A 2007 Update, 79 N.Y. St. B.J. 64 (Oct. 2007) ........................................................................................... I Gerald Lebovits, The Third Series: A Review, 77 N.Y. St. B.J. 30 (Mar./Apr. 2005)................................................................................... J Gerald Lebovits, The Legal Writer, Plain English: Eschew Legalese, 80 N.Y. St. B.J. 64 (Nov./Dec. 2008) ................................................................................. K Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Do’s—Part I, 79 N.Y. St. B.J. 64 (May 2007) .......................................................................................... L Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Do’s—Part II, 79 N.Y. St. B.J. 64 (June 2007) ......................................................................................... M Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Don’ts—Part I, 79 N.Y. St. B.J. 64 (July/Aug. 2007) .................................................................................. N Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Don’ts—Part II, 79 N.Y. St. B.J. 64 (Sept. 2007) ......................................................................................... O Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Grammar—Part I, 79 N.Y. St. B.J. 80 (Nov./Dec. 2007) ................................................................................. P Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Grammar—Part II, 80 N.Y. St. B.J. 80 (Jan. 2008) ........................................................................................... Q Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Punctuation—Part I, 80 N.Y. St. B.J. 64 (Feb. 2008)........................................................................................... R Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Punctuation—Part II, 80 N.Y. St. B.J. 64 (Mar./Apr. 2008).................................................................................. S Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Legal Writing Punctuation—Part III, 80 N.Y. St. B.J. 64 (May 2008) .......................................................................................... T Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Usage Controversies—Part I, 80 N.Y. St. B.J. 64 (June 2008) .......................................................................................... U Gerald Lebovits, The Legal Writer, Do’s, Don’ts, and Maybes: Usage Controversies—Part II, 80 N.Y. St. B.J. 64 (July/Aug. 2008) .................................................................................. V Ethical Judicial Opinion Writing GERALD LEBOVITS,* ALIFYA V. C URTIN,**&LISA SOLOMON*** INTRODUCTION The judiciary’s power comes from its words alone—judges command no army and control no purse. In a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Opinion writing is public writing of the highest order; people are affected not only by judicial opinions but also by how they are written. Therefore, judges and the opinions they write—opinions scrutinized by litigants, attorneys, other judges, and the public—are held, and must be held, to high ethical standards. Ethics must constrain every aspect of the judicial opinion. One way to judge judges is to read their opinions. Although a judge’s role in the courtroom is a crucial judicial function, only those in the courtroom witness the judge’s conduct, and most of them are concerned with their case alone. Judicial writing expands the public’s contact with the judge. Writing reflects thinking, proves ability, binds litigants, covers those similarly situated, and might determine the result of an appeal. Judges hope that what they write will enhance confidence in the judiciary and bring justice to the litigants. The heart of a judge’s reputation and function rests with the use of the pen. Judges must resolve controversies. Processes in the courtroom might influence a judge’s decision, but the written opinion rationalizes issues, explains facts, and settles disputes.1 Opinions open windows into judges’ minds and show how judges fulfill their duties. They provide accountability because they are available to the public, the litigants, and higher courts to read and review. An opinion’s quality is determined by tone, organization, style, method, and * Judge, New York City Civil Court, Housing Part, New York, New York, and Adjunct Professor of Law, St. John’s University School of Law. B.A., 1976, Carleton University; LL.L., 1979, University of Ottawa; M.C.L. with distinction, 1980, Tulane University; LL.M. (in Criminal Justice), 1986, New York University. Some research in this article draws on Judge Lebovits’s Ethical Judicial Writing, Parts I, II, and III, published in his Legal Writer columns at 78 N.Y. ST. B.J., Nov.ϪDec. 2006, at 64; 79 N.Y. ST. B.J., Jan. 2007, at 64; and 79 N.Y. ST. B.J., Feb. 2007, at 64. The authors thank Alexandra Standish, Judge Lebovits’s law clerk, for her editorial suggestions and the Honorable Gary D. Spivey, the New York State Reporter of Decisions, for his advice and encouragement. ** Associate, Clark Thomas & Winters, Austin, Texas. B.A. phi beta kappa, 1999, University of Maryland, College Park; J.D. summa cum laude, 2002, New York Law School. *** Principal, Lisa Solomon, Esq., Legal Research and Writing, Ardsley, New York; B.A. magna cum laude, phi beta kappa, Brandeis University, 1990; J.D. cum laude, 1993, New York University. 1. Judith S. Kaye, Judges As Wordsmiths,69N.Y.ST. B.J., Nov. 1997, at 10, 10 [hereinafter Kaye, Wordsmiths]. 237 Electronic copy available at: http://ssrn.com/abstract=1299767 238 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 21:237 reasoning. Because opinions offer a glimpse into a judge’s mind, they must be credible, impartial, dignified, and temperate. As one scholar explained, “Recog- nizing the extent to which [judicial] opinions are subject to scrutiny by the legal community, contributing substantially to legal scholarship, education, and history, it is crucial that the content of these opinions meet high ethical standards.”2 To meet these high ethical standards, a judge must ensure accuracy and honesty in research, facts, and analysis. Opinions must exhibit the qualities of good moral character: Candor, respect, honesty, and professionalism.3 These qualities are not the only considerations in opinion writing, but they offer a required starting point. The way an opinion is written can tell the reader as much about a judge as the opinion’s substance. Sloppy writing shows that the judge put insufficient time into writing the opinion. An opinion that presents a slanted version of the facts or gives short shrift to a seemingly meritorious argument might suggest that the judge did not explore both sides of an issue.4 Lambasting or lampooning lawyers or litigants might indicate bias.5 An attempt to shoehorn facts into a particular result when further research might yield a clearer, more convincing, and different result might show poor reasoning.6 Perhaps most important of all, poorly drafted opinions “all too often reach the wrong result from an objective, or philosophi- cally neutral, point of view.”7 Ethical judicial opinion writing inextricably
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