Monday, May 6, 2013
Judge Richard A. Posner offers insights on federal court opinions and advocacy in his recent article Judicial Opinions and Appellate Advocacy in Federal Courts—One Judge’s Views. His observations about how judges decide cases and write opinions will be of particular interest to law graduates who are about to start judicial clerkships. Posner criticizes typical “formalist” case opinions, often drafted by law clerks, as including useless facts, unhelpful bromides, and uninformative string citations. Such opinions display “a tendency to overkill, to repetition, to tedium, and the clutter of citations, facts, quotations, and boilerplate . . . .” Posner’s antidote for these flaws is “economy of expression.”
In his advice for advocates, Posner advises that they put themselves in the judge’s place. Because the typical judge has little time for each case and is seldom an expert in the subject matter, the judge “is badly in need of advocates’ help.” And at oral argument, the advocate should be ready with “simple, common-sensical points.”
In one particularly interesting section, Posner criticizes the Supreme Court for referring to dissenting opinions in majority opinions and for displaying “pseudo-learning[ ] and uncontrolled verbosity” that make many of its opinions “extremely painful to read.”
For more of Posner’s inside information, read the full article at 51 Duquesne Law Review 3 (2013).