Thursday, June 24, 2010

Trends in Legal Writing

Today's Supreme Court decisions display a recent trend: the statement of facts in the Court's decisions has become so long and boring that the Court has taken to previewing the facts in the introduction. The result is that the introduction contains all the facts you really need to know to understand the decision, so you can skip over the actual statement of facts, which is bloated with unnecessary detail. Check out these examples.

It makes one sigh for the opinions of old, when facts were stated crisply and succinctly and the opinion got right to the good parts. Take a look at Judge Cardozo's classic opinion in Palsgraf v. Long Island Railroad Co.: the statement of facts is one short paragraph. It's kind of like the statement-before-the-statement in today's Supreme Court opinions. If only the Court could limit itself to that minimalist statement instead of using it merely as the preview before the detailed statement.

There's a reason why statements should be short. Not only does it make the opinion easier to read, but it makes the case easier to apply. If a court states 20 facts in its statement of facts, it is implying, or at least leaving open the possibility, that all 20 facts were relevant to its decision. What if the next case has 18 similar facts but two different ones? Do we have to go back to the Supreme Court to find out if those two were critical to the decision? Possibly. If the Court states only 5 facts in its statement, it's much easier to tell whether the decision applies to a subsequent case.

Therefore, the statement should be rigidly limited to relevant facts. Don't embellish.

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