Thursday, December 17, 2009

Scholarship alert: "Opinion writing and opinion readers"

Co-authored by Judge Ruggero J. Aldisert of the Third Circuit, he was the recipient of of the Legal Writing Institute's Golden Pen Award a few years back.  The article can be found at 31 Cardozo L. Rev. 1 (2009).

From the abstract:

Likewise, harried opinion readers will benefit from a better understanding of opinion structure and opinion writing technique as they struggle to parse - whether as students in a first year classroom or as advocates researching a case to be argued before the highest court in the land - just exactly what these dang opinions are intended to convey and why they are even written in the first place. ... Almost fifty generations of law clerks have served in Judge Aldisert's chambers; the coauthors are the most recent in this long line of apprentice opinion writers and avid opinion readers and researchers. ... Examine the following table for a summary of each element: Greco-Roman George Rose Description Rhetoricians Smith's Primer Opening Exordium Opening Traditional form: paragraph(s); the paragraph explanation of the orientation nature of the action below, of the parties, the judgment, and the issues on appeal; Issue form: also includes major issue to be discussed Summary of issues Divisio Indication of Statement of issues to discussed issues on be discussed appeal Material or Narratio Statement of Narrative or adjudicative facts the facts adjudicative facts

Analysis of the Confirmation Discussion of Proof of case issues presented by a. ... The practical reasons for carefully stating the material facts are enshrouded in the formation of the common law tradition. ... A like case is one where the material facts are identical with or substantially similar to those in the putative precedent: Two cases or decisions which are alike in all material respects, and precisely similar in all the circumstances affecting their determination, are said to be or run "on all fours" with each other, or, in the more ancient language of the law, the one is said to "run upon four feet" with the other. ... If the conflict falls within this category, do not discuss choice of other precepts; discuss only interpretation of the law (category 2), and application to the facts (category 3). (3) Application of the law to the facts. ... Proper "middle ground" footnote use includes: (1) to authenticate a statement where the citation is not important enough to include in the text; (2) to set forth multiple citations in order to support a single proposition in the text; (3) to quote extensive text of a rule, statute, regulation, will, contract, or other document essential to the opinion; (4) to dispose of collateral issues, controlled by precedent, that would disrupt flow or organization of the text; (5) to record related issues not reached; (6) to set forth trial testimony that supports facts in the text; (7) to respond to concurring or dissenting opinions; (8) to incorporate contributions of other members of the court whose ideas interfere with organization of the text or whose writing styles do not conform with the opinion writer's; and (9) to track all contentions in a direct or collateral criminal appeal not discussed in the opinion so that there will be a record of the contentions for res judicata purposes.

I am the scholarship dude.


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