Opinion Writing and Opinion Readers

Abstract:     
The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, 2nd Edition, an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students. This Article draws from and complements topics addressed in Opinion Writing, 2nd Edition, while specifically highlighting the relationship between opinion writing and opinion readers.

In Part I, we survey some of the considerations facing opinion writers as they decide whether to write an opinion at all, examine the decision-making process engaged in by courts prior to writing an opinion, and summarize the various types of written "opinions" that may be produced, such as per curiams, judgment orders, precedential and non-precedential opinions. In Part II, we identify primary and secondary "readership markets" for judicial opinions and discuss how the purpose of writing opinions is affected by the intended audience. In Part III, we dissect the ideal structure of an opinion, offer basic mechanics of draftsmanship and address some of the criticisms of judicial opinions lodged by readers. In Part IV, we briefly touch on opinion writing style and editing. In conclusion, we reaffirm the need for wider understanding of the judicial process and for increased clarity of communication between opinion writers and readers. To this end, we hope this Article will serve as a useful resource for all opinion readers and writers, including scholars, practitioners and judges, students and aspiring law clerks.

Keywords: opinion writing, judicial process, legal writing, appellate, judiciary, clerking

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