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Ethical Judicial Writing—Part III Gerald Lebovits

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Ethical Judicial Writing—Part III Gerald Lebovits 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.
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