University of Ottawa Faculty of Law (Civil Law Section)

From the SelectedWorks of Hon. Gerald Lebovits

February, 2007

Ethical Judicial Writing—Part III Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/4/ FEBRUARY 2007 VOL. 79 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION

When High-Priced Celebrity Lawyers Are Tax Deductible

Drawing the fuzzy line between personal and Also in this Issue business expenses for those in the public eye. Expert Witness Disclosure Irregular Migrants by Robert W. Wood and Compensation for Personal Injury Tales of Data-Breach Woe THE LEGAL WRITER BY GERALD LEBOVITS

GERALD LEBOVITS ([email protected]) is a judge of the New York City Civil Court, Housing Part, in Manhattan and an adjunct at New York Law School.

Ethical Judicial Writing — Part III

or the past two issues, the Legal the reader.5 Example: “A mistake was ior and speaking clearly — in English, Writer offered suggestions on made.” Becomes: “This court made a not in Latin, not in French, and not in Fwriting ethical judicial opinions. mistake.” pettifog . . . . We need to say what we We continue. Metadiscourse is written throat- mean in a way that people can under- clearing, a needless preface to a sub- stand.”8 Writing Style stantive point. It introduces what the Judges who use sexist language A good opinion “expresses the decision writer plans to write: “For all intents offend both genders. Some states — and rationale of the court in language and purposes, the defendant disre- New York included9 — require that and style that generate confidence in garded the court’s order.” Becomes: opinions be gender neutral. A judge the reader that justice has been fairly “The defendant disregarded the who uses gender-neutral language will and effectively administered.”1 Judges court’s order.” Phrases like “bear in appear fair. Once again, Chief Judge may make their opinions readable: mind that,” “that is to say,” “it is the Kaye said it best: “[G]ender-neutral “[A] judicial opinion need not be a court’s conclusion that,” “the court writing is not only a good habit but dull, stereotyped, colorless recital of recognizes that,” “it is well settled also an easy one to acquire and inter- facts, issues, propositions, and authori- that,” “after careful consideration,” “it nalize.”10 ties but can be good writing and make appears to be the case that,” and “it is Trial judges shouldn’t to use “I” good reading.”2 Memorable opinions hornbook law that” are metadiscour- or “we.” “I” is inappropriate because with literary style best communicate sive. Metadiscourse is pedantic and it’s informal, placing the judge on the the law. Nevertheless, a satisfactory condescending.6 Without saying that same level as the winning side. A trial “objective is not a literary gem but they’re getting to the point, and espe- judge writing an opinion shouldn’t use a useful precedent, and the opinion cially without saying how well they “we”; the word is inaccurate. It’s better should be constructed with good words, researched or how seriously they con- to write “the court” or “this court.” not plastered with them.”3 sidered the case, judges should get to Using “we” is appropriate only at the Judges must avoid pitfalls common the point, research fully, and consider appellate level, where more than one to all legal writing. Nominalizations the case carefully. judge will contribute to the opinion. and the passive voice add unnecessary Judges should also refrain from “I” is acceptable in concurring and words that hide substance and allow a writing pretentiously or overusing dissenting opinions. Concurrences and judge to escape or downplay responsi- adjectives, adverbs, clichés, and over- dissents aren’t the court’s ruling but bility for a decision.4 Hiding the subject, developed metaphors. The opinion the individual author’s argument. or actor, can both deceive and make should leave the judge’s personality sentences abstract. Nominalizations in the background and focus on logical Boilerplate Opinions turn nouns into verbs. One way to analysis. Likewise, judges shouldn’t try Faced with ever-increasing caseloads, spot some nominalizations is to watch to impress readers with vocabulary.7 judges are tempted to rely on the same for an “of” or a word ending in “ion”: Forcing readers to look up words less- cases or language to resolve issues “He committed a violation of the ens clarity and insults readers. Judges encountered repeatedly. Boilerplate Penal Law.” Becomes: “He violated the should also avoid writing in Latin or saves time. It’s convenient. But a judge Penal Law.” Passives place the action’s French if a simple English equivalent is who relies on boilerplate might not object before the actor. Look for the available. So, too, should judges avoid pay attention to facts and issues par- word “by”: “Opinions are written by legalisms. As New York’s Chief Judge ticular to the case. A boilerplate opin- judges.” Becomes: “Judges write opin- Judith S. Kaye put it, “First, we need ion can ignore issues. It can amount ions.” It’s unethical to use a blank, to make sure that our communications to nothing more than an ill-advised or double or nonagentive, passive to are accessible. For sitting judges, this judicial shortcut.11 Writing quickly is hide an important actor or to misdirect starts with sensitive courtroom behav- CONTINUED ON PAGE 56

64 | February 2007 | NYSBA Journal THE LEGAL WRITER nature judgments, orders, and decrees, written opinion reflects a judge’s skill CONTINUED FROM PAGE 64 but “no authority . . . countenances and temperament. Every word and the preparation of the opinion by the citation must be the judge’s authentic important,12 but the litigants’ inter- attorney for either side. That practice voice. A judge shouldn’t credit the law ests shouldn’t be sacrificed for judicial involves the failure of the trial judge clerk’s work. In New York, the Law economy. Missing an issue because a to perform his judicial function.”20 The Reporting Bureau (LR B) has put into judge used form precedent or form other extreme occurs when a judge effect the Court of Appeals’s policy language is inexcusable. It causes liti- decides a case without reading the forbidding judges from thanking their gants expense, delay, and anguish. lawyers’ papers.21 law clerks or interns in opinions: The Judges, who must keep an open The rules prohibiting plagiarism LRB won’t publish the acknowledg- mind, should consider each case anew, affect extrajudicial writing as well. A ment. Before this rule went into effect, even if the issues seem familiar. Judges Michigan judge was publicly censured many judges lauded clerk and intern who pen boilerplate opinions signal for not acknowledging passages from contributions.30 Some still do. their laziness, and “[a] court must con- one article and for incorporating with- A judge may use a law clerk, stu- stantly be the alert against mental lazi- out attribution portions of another.22 dent intern or extern, special master, ness. The decision suggested by habit Judges may use language from case or referee to assist in opinion writing. might not be the right one.”13 law or a lawyer’s brief if they cite A judge may not use an outside expert,

Judges, who must keep an open mind, should consider each case anew, even if the issues seem familiar.

Plagiarism the source when paraphrasing or use such as a law professor, to write the Plagiarism is “the unauthorized use of quotation marks and attribution when opinion.31 Judges who let court outsid- the language and thoughts of another words are taken verbatim. The opposite ers write for them can be reprimanded, author and the representation of them of plagiarism is scholarship: It’s schol- censured, or removed from office. as one’s own.”14 Judges who don’t arship to cite the starting point from attribute fairly act unethically. No spe- which the judge’s idea was derived. Extrajudicial Writing cific code or rule exists on this topic, Judges may write things other than but two New York rules are implicat- Law Clerks judicial opinions if the writing doesn’t ed. First, the Rules Governing Judicial It’s ethical for judges to rely on law cast doubt on their ability to act impar- Conduct (RGJC) require judges to act clerks to research and help draft opin- tially, affect the court’s dignity, or “in a manner that promotes public ions.23 Although doing so is an accept- interfere with judicial performance.32 confidence in the integrity and impar- ed judicial practice,24 judges must be Judges are prohibited from writing tiality of the judiciary.”15 Second, the wary about potential dangers. The about pending or impending cases, RGJC requires judges to “be faithful RGJC requires judges to perform their whether about the merits, the facts, the to the law and maintain professional duties diligently.25 Diligence doesn’t litigants, or the attorneys.33 The RGJC competence in it.”16 mean delegating a task and forget- doesn’t expressly prohibit judges from Judges may not steal words, inten- ting about it. Even if the clerk plays commenting on cases they’ve decided, tionally or otherwise.17 They must a large role writing the decision, the but judges should avoid doing so.34 avoid obvious and intentional plagia- judge must always take a hands-on Unlike statutes, which legislative his- rism: copying headnotes or quoting approach. tory clarifies, an opinion is self-con- without crediting. Sometimes judges Judges should give their clerks tained. A judge’s extrajudicial com- plagiarize by copying language from direction.26 If the clerk believes that ments shouldn’t guide future courts.35 a lawyer’s brief. A famous example the judge is mistaken, the judge should Controversy on this issue arose recent- is from Chief Justice John Marshall listen to the clerk and adjust the opin- ly when a New York Family Court in M’Culloch v. Maryland.18 He used ion, if necessary.27 This process should judge on the verge of retiring wrote a Daniel Webster’s words as his own: continue throughout the research and New York Law Journal commentary crit- “An unlimited power to tax involves, writing. The judge should edit the icizing the Appellate Division, Second necessarily, a power to destroy.”19 clerk’s drafts for style, research, and Department, for reversing one of his A court that copies commits revers- substance.28 decisions.36 ible error if in doing so it doesn’t Regardless how much the law clerk The RGJC provides that “[a] judge exercise independent thought. Judges contributed to the decision, the judge shall not lend the prestige of judicial may direct attorneys to submit for sig- is responsible for the result.29 A well- office to advance the private interests

56 | February 2007 | NYSBA Journal of the judge or others.”37 The Advisory tion instruction to associates of a law Judges should not Committee on Judicial Ethics has firm, even if the law firm doesn’t have write pretentiously issued several advisory opinions about pending cases before the judge.50 This extrajudicial writing that advances pri- behavior “associate[s] the judge with or overuse adjectives, vate interests. the competence of a private law firm Judges face ethical dilemmas when and would serve the exclusive interests adverbs, clichés, they write personal recommendations of that firm . . . rather than the common and overdeveloped that give the appearance of partiality. professional interests of a heteroge- Judges should mark “personal and neous, unconnected group of lawyers, metaphors. unofficial” on whatever letter isn’t part who . . . might be the beneficiaries of a of the court’s official business, and judge’s lecture on legal practice, e.g., at they should avoid writing unsolicited a bar association program.”51 these bounds have done their jobs. letters. A judge may publish fictional works For doing their jobs well, they will be That said, New York judges may but, again, may not publicly comment venerated. The judiciary, the litigants, write recommendation letters on behalf on pending or impending cases, even and society are better for it. ■ of a law-school or job applicant38 or an if a judge uses fictitious names to attorney who seeks admission to an protect the innocent or guilty.52 Judges 1. Am. B. Ass’n — Appellate Judges Conference, Judicial Opinion Writing Manual 1 (1991). 18-B panel.39 A judge may recommend may write a book review but may not 2. Bernard E. Witkin, Manual on Appellate Court a former assistant district attorney for endorse the book: Judges “may not Opinions § 103, at 202–03 (1977). 40 private employment. A judge may provide a quot[ation] about a book 3. Id. at § 103, at 204–05 (emphasis in original). recommend a court employee seeking for the purpose of its being used in 4. Laura E. Little, Hiding with Words: Obfuscation, work in another court.41 A Criminal the book jacket in conjunction with Avoidance, and Federal Jurisdictional Opinions, 46 Court judge may not write a recom- its sale. Such activity would involve a U.C.L.A. L. Rev. 75, 97–99 (1998). mendation on behalf of a law student judge in the commercial and promo- 5. Steven Stark, Why Lawyers Can’t Write, 97 Harv. L. Rev. 1389, 1392 (1984). Courts understand that the to a district attorney whose assistants tional aspects of marketing and . . . is passive voice can deceive. See, e.g., J & A Vending, 42 53 appear before the judge. A judge may prohibited.” Inc. v. J.A.M. Vending, Inc., 303 A.D.2d 370, 373, authorize a job candidate to list the Judges must also be careful about 757 N.Y.S.2d 52, 55 (2d Dep’t 2003) (mem.) (“This attorney’s use of the passive voice, a grammatical judge as a reference; a judge may also publicly commenting on the law. Judges device that conceals as much as it reveals, betrays respond to a district attorney’s request may not comment on a legal issue an unwillingness to identify . . . .”). 43 for information about the candidate. that might come before them or state 6. Gerald Lebovits, The Legal Writer, Writers on A judge may recommend a candidate a political view that might call their Writing: Metadiscourse, 74 N.Y. St. B. J. 64 (Oct. with a “To Whom It May Concern” let- impartiality into question.54 It’s also 2002). ter44 that the judge gives the candidate. improper for a judge to attack higher- 7. See David Margolick, Sustained by Dictionaries, a Judge Rules that No Word, or Word Play, is Inadmissible, A judge may also serve as a reference court decisions. Doing so detracts from N.Y. Times, Mar. 27, 1992, at B16; Howard Bashman, for attorneys seeking employment confidence in the judiciary and casts 20 Questions for Circuit Judge Bruce M. Selya of the with a law firm that doesn’t appear doubt on the judge’s ability to follow U.S. Court of Appeals for the First Circuit, available at http://20q-appellateblog.blogspot.com/2004_ 55 before the judge and is located outside precedent. Still, judges may — and 03_01_20q-appellateblog_archive.html (last visited the judge’s jurisdiction.45 A judge may should — write to explain substan- Aug. 4, 2006). Judge Selya is famous for using in write a character letter for a co-op tive law and procedure and comment his decisions what he calls “neglected” words — including “sockdolager,” “algid,” “longiloquent,” 46 application. A judge shouldn’t write on issues facing the judiciary, such as and “decurtate.” 56 a recommendation for a police officer judicial-writing ethics. 8. Judith S. Kaye, Rethinking Traditional Approaches, who will likely be a witness in a case 62 Albany L. Rev. 1491, 1497 (1999). before the judge.47 A judge is prohibited Conclusion 9. See N.Y. St. Jud. Cttee. on Women in the from giving a reference letter to a bank A judge’s behavior on the bench might Courts, Fair Speech: Gender Neutral Language in the Courts (2d ed., N.Y. St. Unified Ct. Sys. 1997); on behalf of a friend seeking a loan. be forgotten. Not so a judge’s writ- N.Y. St. Law Reporting Bureau, Official Edition Judges may not lend their office’s ing. Being ethical is critical for judges. New York Law Reports Style Manual § 12.1, at prestige to further a friend’s private They set examples for lawyers and 65–66 (2002 ed.) (Tanbook), available at www.courts. 48 state.ny.us/reporter/Styman_Menu.htm (last vis- business interests. Or their own inter- laypersons. They decide cases and ited Aug. 4, 2006). For more, see Gerald Lebovits, ests: Judges shouldn’t use judicial sta- expound on the law. Written opinions The Legal Writer, He Said — She Said: Gender-Neutral tionery for private matters. reflect a judge’s values — and society’s Writing, 74 N.Y. St. B.J. 64, 64 (Feb. 2002). Judges may teach, write, and speak values. Judges must never forget the 10. Judith S. Kaye, Perspective, A Brief for Gender- Neutral Brief-Writing, N.Y.L.J., Mar. 21, 1991, at 2, on the law, the legal system, and the special role entrusted to them. They col. 3. administration of justice and be com- must never forget to do what’s right 11. See David Mellinkoff, Legal Writing: Sense 49 pensated for doing so. But judges within the bounds of the law and the & Nonsense 101 (1982) (noting that forms offer shouldn’t give continuing legal educa- law of ethics. Judges who stay within “pre-packaged law . . . . taken on quick faith by the

NYSBA Journal | February 2007 | 57 ignorant, the timid, and the too busy — law and all; make changes ranging from grammatical correc- 38. Formal Op. 88-10 (Vol. I). needed or not.”); Moses Lasky, Observing Appellate tions to major rewrite). 39. Id. at 96-32 (Vol. XIV). Under County Law art. Opinions from Below the Bench, 49 Cal. L. Rev. 831, 29. Fed. Jud. Ctr., Judicial Writing Manual 11 (1991) 18-B, courts appoint 18-B attorneys to represent 837 (1961) (observing that form opinions can lead to (explaining that opinion must be judge’s work, no litigants financially unable to hire their own attor- judicial shortchange). matter how capable clerk is). neys. 12. See generally Elizabeth Ahlgren Francis, A Faster, 30. Wolkoff v. Church of St. Rita, 132 Misc. 2d 464, 40. Id. at 94-36 (Vol. VII.). Better Way to Write Opinions, 4 Judges’ J. 26 (Fall 473, 505 N.Y.S.2d 327, 334 (Sup. Ct., Richmond Co. 41. Id. at 90-46 (Vol. V). 1988). 1986) (Kuffner, J.); Acceptance Ins. Co. v. Schafner, 651 42. Id. at 88-53 (Vol. II). 13. William L. Reynolds, Judicial Process in a F. Supp. 776, 777 (N.D. Ala. 1986) (Lynne, J.), practice Nutshell 63 (2d ed. 1991). condemned in Parker v. Connors Steel Co., 855 F.2d 43. Id. 1510, 1524 (11th Cir. 1988). 14. Webster’s Universal College Dictionary 604 44. Id. (1997). 31. In re Fuchsberg, 43 N.Y.2d (j) (y), 426 N.Y.S.2d 45. Id. at 01-114. 639, 648 (Opn. of Censure — Ct. on Jud. 1978) (per 15. 22 NYCRR 100.2(A). 46. Id. at 98-103. curiam); In re Judicial Disciplinary Proceedings Against 16. Id. 100.3(B)(1). Tesmer, 219 Wis. 2d 708, 580 N.W.2d 307 (1998) (per 47. Id. at 01-37; 22 NYCRR 100.2(C). 17. See generally Jaime S. Dursht, Judicial Plagiarism: curiam). Judges may, however, consult experts ex 48. Id. at 89-15. It May be Fair Use But is it Ethical?, 18 Cardozo L. parte if, after they receive the expert’s report, they 49. 22 NYCRR 100.4(B); 100.4(H)(1); Formal Op. Rev. 1253 (1996). share the report with the litigants. Cf. Advisory 96-143 (Vol. XV), 90-204 (Vol. VII). Comm’n on Jud. Ethics Op. 04-88, N.Y.L.J., May 20, 18. 17 U.S. 316, 327 (1819). 2005, at 7, col. 1 (requiring Drug Court judges to 50. Formal Op. 01-31. 19. Daniel J. Kornstein, Legal Writing for Litigators (N.Y. inform parties of contents of ex parte communica- 51. Id.; see also 22 NYCRR 100.2(C) (requiring judge County L. Ass’n CLE, Feb. 4, 2004), available at http:// tions from court personnel). in all judicial activities to avoid impropriety and its nycla.org/index.cfm?section=CLE&page=DVD--- appearance). 32. 22 NYCRR 100.4(A)(1), (2) & (3). CD_Detail&itemID=149. 52. Formal Op. 01-31. 33. N.Y. St. Advis. Cttee. on Jud. Eth., Formal Op. 20. Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d at 00-115 (Jan. 25, 2001); William G. Ross, Extrajudicial 53. Id. at 97-133. 719, 724–25 (4th Cir.1961) (quoted in Bright v. Speech: Charting the Boundaries of Propriety, 2 Geo. J. 54. Kaye, supra note 34, at 712–13; accord Westmoreland County, 380 F.3d 729, 732 (3d Cir. Legal Ethics 589, 598–99 (1989) (discussing extraju- Republication Party of Minn. v. White, 536 U.S. 2004)). dicial commentary from standpoint of Model Rules 765 (2002) (finding Minnesota’s Code of Judicial 21. See generally Daniel J. Kornstein, No Ruling of Judicial Conduct). Conduct Canon announce clause unconstitution- Without Reading!, N.Y.L.J., Feb. 2006 (Mag.), at 48, al under First Amendment because clause for- 34. Judith S. Kaye, Safeguarding a Crown Jewel: 48. bade candidates for judicial election to announce Judicial Independence and Lawyer Criticism of Courts, 25 their views on disputed legal and political issues). 22. See In re Brennan, 433 Mich. 1204, 447 N.W.2d Hofstra L. Rev. 703, 713 (1997) (stating that although Another recent controversy arose when a New York 712 (1989). RGJC doesn’t prohibit commenting about cases that judge wrote a fictional book, Hot House Flowers. judge already decided, doing so is unwise). 23. See Jeffrey O. Cooper & Douglas A. Berman, Some critics contend from the book’s allusions and Passive Virtues and Casual Vices in the Federal Courts 35. Ross, supra note 33, at 602. metaphors “that immigrants might not be receiving of Appeals, 66 Brook. L. Rev. 685, 697–98 (2001) (not- a fair shake in his courtroom.” Thomas Adcock, 36. See Guy P. DePhillips, Family Court Cares, ing that law clerks write most decisions); Richard A. Judge’s Book on Illegal Aliens Draws Ire, N.Y.L.J., N.Y.L.J., May 18, 2006, at 2, col. 3. Three attorneys Dec. 1, 2006, at 1, col. 3. Posner, Cardozo: A Study in Reputation 148 (1990) responded by attacking the judge. See Richard J. (same); Abby F. Rudzin & Lisa Greenfield Pearl, Ten 55. Ross, supra note 33, at 624–34. Montelione, How to Influence a Higher Court, N.Y.L.J., Brief-Writing Don’ts — The Judicial Clerk’s Perspective, June 7, 2006, at 2, col. 6; Daniel L. Greenberg, Judge 56. See Barbara E. Reed, Tripping the Rift: Navigating 85 Ill. B.J. 285, 285 (1997) (same). For more about law Was Wrong on the Merits, N.Y.L.J., May 31, 2006, Judicial Speech Fault Lines in the Post-White Landscape, clerks and opinion writing, see Gerald Lebovits, at 2, col. 6; James Edward Pelzer, Judge’s Attack on 56 Mercer L. Rev. 971, 996 (2005) (noting judges’ Reflection, Judges’ Law Clerks Play Varied Roles in Appellate Court is Inappropriate, N.Y.L.J., May 25, “affirmative duty to speak on the record about cer- the Opinion Drafting Process, 76 N.Y. St. B.J. 34 2006, at 2, col. 5. tain types of issues, and to help educate the public (July/Aug. 2004). In New York, “law clerks” work about the role and function of the judiciary and the for Court of Claims judges and elected Supreme 37. 22 NYCRR 100.2(C). courts”). Court justices. All other law clerks are “court attor- neys.” For the ethical differences between law clerks and court attorneys, see Gerald Lebovits, Outside Counsel, Judicial Ethics, Law Clerks and Politics, N.Y.L.J., Oct. 21, 1996, at 1, col. 1. 24. A. Leo Levin & Michael E. Kunz, Thinking About Judgeships, 44 Am. U. L. Rev. 1627, 1640–42 (1995). 25. 22 NYCRR 100.3. 26. Douglass K. Norman, Legal Staff and the Dynamics of Appellate Decision Making, 84 Judicature 175, 175, 177 (2001) (stating that clerk should receive initial guidance from judge). 27. Peter N. Thompson, Confidentiality in Chambers: Is Private Judicial Action the Public’s Business, 62 Bench & B. Minn. 14, 17 (Feb. 2005) (noting that law clerks “‘are sounding boards for tentative opinions and legal researchers who seek authorities that affect decision’”) (quoting Hall v. Small Business Admin., 695 F.2d 175, 179 (5th Cir. 1983) (Rubin, J.)). 28. See Norman, supra note 26, at 175 (stating that after reviewing draft, judge should ask clerk to

58 | February 2007 | NYSBA Journal