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Law Practice,
Judges and Judiciary,
California Courts of Appeal,
Appellate Practice

Mar. 1, 2021

Expedition vs excellence

To follow up on last month’s column “Revelations,” this column centers on, not centers around, opinion writing.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on gilbertsubmits.blogspot.com.

UNDER SUBMISSION

To follow up on last month's column "Revelations," this column centers on, not centers around, opinion writing. All the views expressed herein, I mean here, are this writer's opinion, I mean my opinion. Why "centers on" and "not around"? The center of a circle is a point. One lands on, or makes a point. The boundary or circumference of the circle is what goes around. Writers who "center around" a point or argument write around the point. That may baffle the reader, and possibly reflect the writer's misapprehension of the point. Those who argue this is picayune and fussy, that readers know the writer's "point," I advise to join those who already decided not to read the rest of this column. Come to think of it, I am not sure I want to write the rest of this column.

As long as we are on the subject of picayune, let's add a few more items I have mentioned in earlier columns around 30 years ago my criticism of: "the reason why," "in connection with," and its cousins, "with respect to," "the fact that," "it would appear that," "clearly," "meaningful," "in terms of," and "alternative," to mean more than a choice of one or the other. For the few of you who decided to read beyond the first paragraph, despite thinking these complaints are trifling, it's still not too late to turn to another article. I would join you, but I have a commitment to the Daily Journal. One writer referred to these pesky distractions as akin to flyspecks on the windshield. That may be true in many cases, but even though you know where you are going, the trip is not as much fun with these distractions.

Here are few observations about judicial opinions that of late appear to be a minority view. Let's begin by asking, what is a judicial opinion? It is a written reason for a decision. The parties, the lawyers, and the public want to know the resolution of the problem and the reason for the resolution. This gives all readers a reasonable prediction about how to conduct their affairs. In most cases, every issue presented by the litigants does not have to be answered. If one important issue decides the case, there is no need to answer every other issue raised. This is not a rule that should apply to all cases. On occasion, judicial opinions may require a historical and statutory analysis. But in general, an extended discussion is best left to the law professors.

Court of Appeal and Supreme Court justices are by definition professional writers. They all have their individual styles, but it is helpful to examine how the opinions of the mostly undisputed outstanding jurists of the past crafted their opinions. Whether you agree with the results or not, the opinions of Holmes, Cardozo and Traynor, to name a few, are mostly short and concise. These master writers did not have word processors to seduce them into writing 70 and 80 page opinions. I suspect if they had word processors, they would have used them as tools to achieve concision rather than prolixity. Wow! And, yes, we all know the saying, "It takes a longer time to write a short opinion." It does. But it's worth the effort and some opinions need time to mature and ripen. But the parties are waiting for the result. The title of this column intrudes with its troubling message: honing to perfection vs. the litigants' need of an answer so they can get on with their affairs. Some cases we call "monsters" take a while. Thousands of pages of transcripts containing motions, testimony and rulings, take time to digest and then write about in an opinion. Getting it right and getting it out are perennial problems.

We will explore these and other issues relating to the writing of opinions and even appellate briefs in future columns. A good future title might be "Revelations II" and maybe "III" if I get tired writing Revelations II. How we prepare for oral argument and how my division handles dissents and concurring opinions might be of interest. Now that I have peaked your interest, the three or four of you who are still reading might expect me to continue with these issues now. I had my second COVID-19 shot yesterday and my arm is sore. So I am through for now, get it? Mmm... we might include civility in future columns. And let's also add bias, implicit and otherwise. And one other thing, if you find any grammatical or other errors in this column, don't bother to call it to my attention. The mistakes I have made and will continue to make are legion. 

#361639


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