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Unpublished Paper
ExpressO (2008)
  • Jeffrey A. Van Detta

What makes a judge a good trial court writer? Should this be measured by the writing of the appeals court judges who review them? Does it even matter if trial court judges write well? These are important questions, especially with the growth of our state and federal trial court systems in the United States and Canada. Yet, they’ve not been directly posed, nor adequately answered, even by law professors who use judicial opinions daily as the grist for milling the laity into lawyers. The typical emphasis on appellate opinions as the exemplars of "good judicial writing” is misplaced. Appellate opinions serve very different functions from the functions served by the trial court judgment. Unlike the appellate opinion, the trial court judgment does not find the facts and evidence readily organized and the evidence logically sifted. The trial court opinion must create a coherent narrative from the raw source material - the evidence (witness testimony, depositions, exhibits, reports, demonstrative evidence) introduced at trial. The trial court is thus able to indulge less artistry (and sometimes license approaching manipulation) in the order and emphasis of presentation than appellate courts enjoy. Accordingly, the study of judicial writing calls for study of trial court opinions, too. If appellate writing models are not the route, then what should we use? Consider the trial court opinions of one of America's most revered appellate writers: Second Circuit Court of Appeals Judge B. Learned Hand. Unlike many of the legendary judicial opinion writers, Hand served a substantial term as trial judge in the U.S. District Court for the Southern District of New York. Given his stellar appellate reputation, the question inevitably arises: How does Hand stand up as a writer of trial court opinions? Is a great appellate writer also a great writer of findings of facts, conclusions of law, and judgments? And by what standards would we judge Hand as a judicial writer, based on his legacy of published trial court opinions (which number over 1,000)? This article undertakes to answer each of those questions, using the principles and techniques of by Armstrong and Terrell in their seminal work on the cognitive psychology of legal writing, THINKING LIKE A WRITER: A LAWYER’S GUIDE TO WRITING AND EDITING (PLI 2003). In Section II of the manuscript, I explore the principles articulated by Terrell and Armstrong by which cognitive psychology permits us to maximize coherence, clarity, and reader efficiency in legal writing. Section III, the heart of the work, is divided into two parts. The first part is devoted to the somewhat different perspective that Hand brought to the trial court writing task when he secured appointment to the Federal District Court in Manhattan in 1909. We bring to bear in the second part those principles worked out in Section II through the lens of Hand’s own predilections sketched in the first part of Section III. In doing so, we undertake a rigorous structural analysis, based on the cognitive psychological principles underpinning all effective legal writing, of Judge Hand’s opinions during a discrete period – the 1916-1917 period – after he had nearly eight years of experience on the trial bench under his belt. Section IV provides an overall perspective on Hand as a trial judge writer as contrasted with an appellate writer, and the lessons from Hand's dichotomous career are distilled into observations about the transformational nature of the opinion writing process itself, and how that perspective can make each trial judge a more effective writer of judicial opinions for the varied audiences they command. This article makes a very substantial contribution to the study of legal linguistics, cognitive psychology as applied in critical reading of judicial opinions, and of Learned Hand’s legacy itself (since his principal biographer, the late Professor Gerald Gunther, paid scant attention to Hand’s district court opinions).

Publication Date
September 1, 2008
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