The straight skinny on better judicial opinions

• Author: Joseph Kimble
• Position: Professor, Thomas M. Cooley Law School, Michigan, United States
• Pages: 101-136

2007] Better Judicial Opinions 101

THE STRAIGHT SKINNY ON

BETTER JUDICIAL OPINIONS

JOSEPH KIMBLE*

May it please the court: this article presents the first

empirical testing of judicial opinions. Of course, you will find no

end of commentary on writing opinions – and several books.1 So

we have lots of sensible advice based on perception, experience,

judgment, and a feel for good style. But as far as I know, no one

has ever tested opinions on readers to see what works and what

doesn’t.

You will probably not be surprised by the results or by the

recommendations for writing effective opinions. Nothing in here

will be radically new. My testing confirms what judges and

lawyers should have long known but don’t regularly practice: if

you care to write better opinions (or letters or memos or briefs),

then make them straightforward and lean.

METHOD OF TESTING

I did this work several years ago and am just now

publishing the results. The method was simple: ask lawyers to

read two versions of the same opinion, decide which one they like

better, and give the reasons why.

_____________________________________________________

* Professor, Thomas M. Cooley Law School, Michigan, United States. This

article is reprinted with permission (and with formatting changes) from

Volume 9 (2003-2004) of The Scribes Journal of Legal Writing. This piece

also appears in Professor Kimble's recent book, Lifting the Fog of Legalese:

Essays on Plain Language (Carolina Academic Press, 2006). Readers

interested in purchasing a copy may go to www.cap-press.com or

www.amazon.com.

1 RUGGERO J. ALDISERT, OPINION WRITING (1990; repr. 1993); APPELLATE

JUDGES CONFERENCE, AMERICAN BAR ASS’N, JUDICIAL OPINION WRITING

MANUAL (1991); JOYCE J. GEORGE, JUDICIAL OPINION WRITING HANDBOOK

(4th ed. 2000); ROBERT A. LEFLAR, APPELLATE JUDICIAL OPINIONS (1974); see

also FEDERAL JUDICIAL CENTER, JUDICIAL WRITING MANUAL (1991).

Judicial Studies Institute Journal [2007:1

102

So I started by taking a volume of the Michigan Appeals

Reports from the shelf, and I spent maybe 10 or 15 minutes

picking an opinion. I had only three criteria. First, it had to be

fairly short so that readers would take the time to read the two

versions. Second, it had to deal with an uncontroversial subject. I

picked a case involving insurance coverage. Pretty bland, but I

did not want readers to be distracted by impressions of how the

case should have been decided. Third, the writing had to be fairly

typical. I did not try to find a case that I thought was quite badly

written. Of course, that would have skewed the results, and

readers and reviewers would have seen through that game easily

enough. You can be the judge of whether the writing in the

opinion seems about average for most of the opinions you read.

The case is Wills v State Farm Insurance Co.2 It seems that

Robert Wills was driving along one day, minding his own

business, when another car pulled alongside him in the passing

lane, fired shots toward his car, and kept right on cruising down

the road, never to be seen again. Wills wanted to collect

uninsured-motorist benefits. To collect under his policy, he

needed to show that the other car had “struck” his car.

I revised the published opinion, did pilot-testing on third-

year law students, and then randomly mailed the original and

revised versions to 700 Michigan lawyers. Actually, I sent them

out in two mailings and tinkered a little with the revised opinion

between mailings. But the tinkering made almost no difference in

the results. I labeled one opinion O (my own clever code for

“original”) and the other opinion X (first mailing) or Y (second

mailing). For simplicity, I’ll just call the revised opinion the Y

opinion.

I had someone else sign the cover letter, since Michigan

lawyers might recognize me as the editor of the “Plain Language”

column in the Michigan Bar Journal. Along with the cover letter

and two opinions, I included a one-page sheet called “Questions

About the Opinions.” Readers were asked which opinion they

liked better, how they rated the two opinions on a 1-to-10 scale,

and the top two reasons why they liked the one better than the

other.

_____________________________________________________

2 564 N.W.2d 488 (Mich. Ct. App. 1997).

2007] Better Judicial Opinions 103

Readers who liked the O version better had these reasons to

choose from:

• It’s more traditional.

• It’s better organized.

• It cites more cases, so it will be more helpful for research.

• The other opinion leaves out important details.

• Other reason: _______________________________

_______________________________

Readers who liked the Y version better had these reasons to

choose from:

• It has a summary at the beginning.

• It uses headings.

• It’s better organized.

• It leaves out a lot of unnecessary detail.

• Other reason: _______________________________

_______________________________

I tried hard to identify what I thought the most likely reasons

would be and to state them dispassionately. I also asked trusted

colleagues to look them over.

In Appendix A, you’ll find the complete package that

readers received. There was just one variable. I thought that it

might make a difference which opinion the readers looked over

first, so in half the packages the O opinion appeared first, and in

the other half the Y opinion appeared first. If the O opinion came

first (as it does in Appendix A), then the O opinion came first in

the choices on the “Questions About the Opinions” page. And I

just reversed it if the Y opinion came first.

Of the 700 lawyers who received the package, 251

responded by returning the “Questions” page. I considered that a

good response, since they had to read seven pages of opinions and

then answer the questions.

The results, as I said, were no surprise: readers strongly

preferred the revised version. I’ll dissect the results in a moment,

but first let me put them alongside some other testing of legal and

official writing.