Tuesday, July 19, 2022
After a three-part series on Justice Kagan, I decided to pick apart the newest justice's writing style. As this post will show, Justice Barrett shares some techniques with Justice Kagan, but executes them in a very different way and delivers a very different style. The sample is her recent majority opinion in George v. McDonough.
1. Syllogism, syllogism, syllogism. When I read a Justice Barrett opinion, I'm always struck with how relentlessly logical it is. Her opening paragraph in George is typical: "Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of “clear and unmistakable error.” We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not."
As I've discussed in prior posts, the pattern of major premise, minor premise, conclusion is the basic structure underlying almost all legal arguments. In appellate law, the major premise is a statement of the law, the minor premise is the given facts, and the conclusion is applying the law to those facts. Justice Barrett does this constantly, as this introduction shows: here's a bit of the law on veterans' disability benefits; here are a few choice facts; here's the conclusion. It makes her reasoning very easy to discern--and if you agree with the premises, you have to agree with her conclusions. It's critical for an attorney to think this way, even if not all succeed in writing this way.
2. Bottom line up front. Using the example of the introduction again, Justice Barrett doesn't leave her reader guessing at what the result will be. As a practitioner, I appreciate this. It can be stressful poking through an opinion trying to figure out whether you prevailed.
3. Short starters. Like Justice Kagan and Chief Justice Roberts, Justice Barrett loves to start sentences with short words, which helps the reader to glide along: "Most important for present purposes, the history reveals that this category of error does not encompass a subsequent “change in law . . . or a change in interpretation of law.” 38 CFR §3.105 (Cum. Supp. 1963). And for good reason: During the many years when clear and unmistakable error was purely a creature of regulation, the governing statutes generally did not allow “[n]ew or recently developed facts or changes in the law” to “provide a basis for revising a finally decided case.” . . . . To stay within that statutory constraint, authorities dating back to 1928 confirm that “[a] determination that there was ‘clear and unmistakable error’ must be based on the record and the law that existed at the time of the prior [VA] decision.” . . . . So, for example, the VA’s failure to apply an existing regulation to undisputed record evidence could constitute clear and unmistakable error. . . . But a subsequent legal change could not, because “only the ‘law that existed at the time’ of the prior adjudication . . . can be considered” in this posture. . . . . Or as the Veterans Court summed up, shortly before the enactment of the 1997 statute: A “new interpretation of law . . . from a case decided in 1993 could not possibly be the basis of [clear and unmistakable] error in 1969,” as “a simple recitation of the time sequence” should “make . . . clear.” . . . . The invalidation of a prior regulation constitutes a “change in interpretation of law” under historical agency practice."
4. Writing about people, not statutes. Using what Ross Guberman calls the "back to life" technique, Justice Barrett takes a maze of statutes and instead of writing about them in the abstract, talks about a people navigating them in real life: "“The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service.” . . . . A veteran seeking such benefits must first file a claim with the VA. §5101(a)(1)(A). A regional office of the VA then determines whether the veteran satisfies all legal prerequisites, including the requirement that military service caused or aggravated the disability. . . . To that end, the statute governing wartime service imposes a “[p]resumption of sound condition”: If a veteran’s disability was not noted at the time of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability “existed before . . . and was not aggravated by such service.” 38 U. S. C. §1111. After applying this and other statutory and regulatory requirements, the regional office issues an initial decision granting or denying benefits. §§511(a), 5104(a). A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA’s Board of Veterans’ Appeals (Board). §§7105(b)(1), 7104(a). If the Board also denies relief, the veteran may seek further review outside the agency. Such review was once limited to constitutional and certain statutory claims, but since 1988 Congress has generally allowed veterans 120 days to appeal any Board decision to the Court of Appeals for Veterans Claims (Veterans Court). . . . A veteran dissatisfied with that court’s decision may seek review of any legal issue in the Federal Circuit and ultimately in this Court. §7292; 28 U. S. C. §1254(1). After this direct appeal process, the benefits decision generally becomes “final and conclusive and may not be reviewed by any other official or by any court.” 38 U. S. C. §511(a); see §7104(a). Still, the veteran enjoys a few limited options for seeking collateral review in exceptional circumstances."
5. Positive before negative. It's almost universal in judicial opinions, but not universal enough in brief writing, so I'll point it out. Justice Barrett makes her affirmative points about what the real meaning of the law is (slip opinion 1-8) before dealing with losing arguments and dissenting opinions (slip opinion 8-12). A mentor of mine once called this "positive before negative"--say why you're right before you say why the other side is wrong. It's rhetorically more pleasing and makes greater logical sense. Even so, I'm surprised at how often attorneys will start pleadings or briefs just attacking what the other side or lower court did and why they are wrong (of course, judges in dissent often do the same thing). You may feel strongly about that, but save it for after you show why yours is the better approach. If you attack first, the court/reader is likely to adopt a defensive posture in favor of what you're attacking (It couldn't have been that bad...), which is never what you want a judge reading your work product to think when they're starting out.
6. Trim all the fat. I've been struck when I read Justice Barrett's opinions at how lean they are--they get right to the point, have little ornamentation, and say no more than they need to about the subject at hand. Her opinions are all business. If Justice Kagan's style is akin to having a relaxed dinner conversation with one of your most interesting friends, full of clever asides, Justice Barrett's is more like getting a military briefing in wartime, serious and to the point. It's Sergeant Joe Friday--just the facts, ma'am. It's very different than many justices, but has an austere, desert-like beauty about it.