Judicial Verbosity – It’s Not Easy Being Green

Posted on Categories Judges & Judicial Process, Legal Writing

paper-millAn article, “Conciseness in Legal Writing,” by my colleague Lisa Hatlen in the June 2009 issue of Wisconsin Lawyer [at 21] got me thinking.  My conclusion: I am surprised that “green” organizations do not picket at various appellate courthouses in this country, especially in Madison, Wisconsin.  A lot of trees are paying a price for judicial verbosity.

It took Judge Benjamin Cardozo about two and a half pages to write Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). Less than forty years later, it took Justice Roger Traynor only about one page more to write Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963). Shortly thereafter, here in Wisconsin, it took Justice Bruce Beilfuss only eight pages to write Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). All three are landmark opinions in their respective jurisdictions, with the first two having national status. [All references here are to West reporter pages.] 

In 1978 volume 83 of the second series of the Wisconsin Reporter was published. The average opinion length of Wisconsin Supreme Court cases in that volume was a bit under twelve and a quarter pages. The longest opinion was thirty-nine and a half pages. Twenty years later in 2008, the average length of the court’s opinions in volume 312 of the same reporter was a bit over fifty pages. The longest was eighty-four. On July 14, a unanimous court decided a relatively easy issue, but there were also two concurring opinions going on and on about an issue not even before the court. [2009 WI 78] WHY?!

It is obvious that the advent of computers and word processing has had an impact on the length of judicial opinions today.  Now, a jurist need not worry about asking an administrative assistant to retype significant portions of an opinion after editing.  The jurist need not proof read various revised copies of an opinion or ask a law clerk to do so.  Now it is easy for a jurist to pull quotes from half a dozen or more authorities that support his or her position, instead of one.  With computerized legal research, the quoted material can be pulled from its original source and easily placed into the opinion – no retyping or proof reading involved.

Nevertheless, today’s appellate jurist should be able to make a concise statement of involved facts; state the issue or issues posed; and, apply old law or fashion new law to resolve the case in a lot less space than they are taking.  Sometimes one comes away from examining a court’s advance sheets with the impression that the various jurists on the court are playing a form of “can you top this” as to opinion page length: “Mine was seventy pages long, yours was only sixty.”

Verbosity reduction would be a boon to the bar.  The cost to clients for legal research could be reduced.  It would also ease the minds of law faculty members who like to have their students read and analyze cases other than the highly edited ones that appear in casebooks.  This is especially so in Wisconsin due to the diploma privilege.  Professors seeking tenure could avoid concern about “assigns too much outside work” appearing on their evaluations by students.

Now some may say it is strange for the co-author of a two volume treatise on punitive damages to be a critic of the length of other peoples writing.  That work, however, has twenty-four chapters and attempts to analyze various aspects of the law in each jurisdiction in the country.  Law firms and lawyers need not buy it or study annual supplements or chapter revisions.  They do, however, have to review advance sheets of opinions of the courts in their jurisdictions to stay abreast of changes in the law and attempt to understand those changes.  Jurists should follow the advice often given to speakers at luncheons or dinners:  Be brief and be seated!

One thought on “Judicial Verbosity – It’s Not Easy Being Green”

  1. While I appreciate Professor Kircher’s desire that appellate opinions be concise and to the point, as a member of Marquette Law’s class of 2009 currently working as a law clerk at a general practice law firm, there have been many instances where I find the verbosity and comprehensiveness of the Wisconsin Supreme Court’s decisions to be quite helpful.

    While it is true that many cases are only important for a very specific issue, there are other cases where a comprehensive review of a subject can be very useful for an attorney that is not experienced in a particular area of the law. There have been many times where I have scribbled away on my legal pad while my boss rattled off facts and legal terms which I hadn’t yet been exposed to and really had no idea where to start. However, from the limited information given to me I have often been able to find a Wisconsin Supreme Court or Court of Appeals decision that is written as a sort of treatise that provided me with a sufficient base of knowledge from which to plan my further research. For example, an assignment was given to me regarding a real estate transaction and the potential causes of action that could be brought regarding the transaction and possible defenses to these causes of action. I quickly found the case Below v. Norton, 310 Wis.2d 713 (2008), which set forth the issues surrounding numerous common law claims, statutory claims, and the relationship of the Economic Loss Doctrine to these claims. While Professor Anzivino did a good job imparting the basic concepts of the Economic Loss Doctrine upon me in my contracts class my 1L year, the comprehensive explanation of the Doctrine’s application in this case made my assignment much easier to write, and it would have been much more difficult to have to pull out many of the issues put forth in this case on my own.

    While shorter cases like Palsgraf are definitely the preference for students in law school, Palsgraf is of limited use to me in practice. However, the recent decision, Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, which is quite lengthy, is of great use to me when trying to understand the concepts of foreseeability, duty and public policy as they relate to a negligence claim.

    As a young Attorney just getting my feet wet, I often cringe when assigned a project that deals with Federal law or concerns state law outside of Wisconsin because I know I have a lot of work ahead of me. However, if an assignment is a subject covered by Wisconsin law that has been discussed by the Supreme Court relatively recently, I know that I will most likely be able to more quickly understand the subject and the issues surrounding my assignment because there is a good chance that there is a verbose case on the subject, and therefore I will be able to better perform my job for my boss and his clients.

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