Saturday, August 29, 2009

A student's Q & my A about reading judicial opinions

A student sent an e-mail asking the following:
I have a quick question for you about the reading, and I'm aware this is an elementary question, but it's something that has been confusing to me in doing the reading.
 In the first paragraph of a case, such as Cook v. Coldwell Banker on page 58 of our course book, a basic rundown of the case is given. The last two sentences of the paragraph are as follows: 
"Defendant also asserts trial court errors relating to instructions, evidence, and closing argument. We Affirm."
 What does the court affirm? The sentence prior to it, thus siding with the defense? Or the lower court, who in this case ruled for the plaintiff. I get the impression that in Cook the court held to the lower court ruling, but to be frank it's confusing, as I read the quoted statement above to mean that the court overturned the ruling.
 My answer, which is not an answer about what the court affirmed, but, rather, about why there's no reason to believe anyone reading this opinion through for the first time could know what the court affirmed:
The short answer to your question is that the first paragraph can be anything. When the court writes that it is affirming, it means it is affirming whatever the court below it ruled. The fact you don't know when you first read the opinion what the court is actually affirming (that is, what the lower court actually ruled) is a reflection not of your lack of understanding, but, rather, that, as I've said in class, the opinions are not written for you and the vast majority are written very poorly. They are not chosen because they are written poorly. The editors of the casebook likely don't even give a thought to the writing but, rather, to the facts of the case and the way they expose something interesting about the law. It may not be the optimal way one could teach law (but it is the way in every law school in this land), but what reading these opinions does is  enmesh you in the kind of conversation that often goes on between experts enmeshed in their expertise. That might be useful way to think of a judicial opinion -- part of an ongoing dialog between experts (begun in earlier cases in arguments by lawyers, and continuing on in later cases by means of arguments by lawyers). It is important to remember that a judge's intended audiences when writing an opinion -- if those audiences can be defined -- are all lawyers.
It might be useful too to consider the difference between, say, a typical scientist/professor and a scientist/professor/best-selling-author-of-intelligent-and-popular-books-about-his-field. An example I can think of in evolutionary science is Richard Dawkins, a brilliant scientists (so I gather) and a brilliant writer (so I've experienced). Instead of reading a terrific book directed by lawyers at non-professional readers, legal opinions are written by judges (lawyers) to other lawyers -- it's as if you started studying evolutionary biology by reading papers Richard Dawkins wrote for other evolutionary biologists, not by reading Richard Dawkins' books that are directed at non-scientist audiences.
 To be more law specific, a judge typically writes for experienced lawyers and judges who then "translate" the results by giving more or less convincing explanations of the results the judge ordered (and which the opinion is one attempt to justify). Judges are not writing opinions for you as a beginning law student. There are no rules on how to write a good judicial opinion, though I and a lot of other legal writing professors could come up with a few if someone would make us the Congress of Opinion Writers.
But there is no authority over how an opinion can be written, so you end up with god awful messes that make no sense to a first year law student reading the opinions through for the first time. Then again, anyone has to read an opinion again and again to begin to come up with explanations. I've read these opinions each probably at least 25 times, and I'm sure that's a low-ball estimate. Certainly I cannot imagine reading any opinion any fewer than 2 times -- the first to just figure out what the case is about (what the parties did to give rise to the dispute, what the legal claims and theories are that the parties advanced to the court, and the result reached by the court), and the second to begin to understand what arguments the court believed could justify that result (which, as I've emphasized, are by no means the only -- or even, often, -- possible arguments that could be used to explain the result).

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