Thoughts on Legal Writing from the Greatest of Them All: Ruggero J. Aldisert

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Thoughts on Legal Writing from the Greatest of Them All: Ruggero J. Aldisert

“[L]egal writing is not designed to describe something like a journalist, to report what is true or false. . . . [I]t is designed to convince, to deter, or to persuade.”^[1]

Judge Ruggero J. Aldisert was a renowned writer of judicial opinions, law journal articles, and books on legal writing.^[2] He graduated from the University of Pittsburgh with a B.A. and J.D. before serving as a Marine for four years during World War II.^[3] After his service, Aldisert began his legal career as a sole practitioner handling civil and criminal cases in Pennsylvania.^[4] He was elected a Pennsylvania state judge in 1961 and later nominated by President Lyndon B. Johnson in 1968 to serve on the U.S. Court of Appeals for the Third Circuit, for which he served as Chief Judge from 1984 to 1986.^[5] Aldisert assumed senior status in 1986 and heard cases until he died in December 2014.^[6] Supreme Court Justice William J. Brennan Jr. described him as a leader who “promot[ed] the shift of justice away from fine-spun technicalities and abstract rules.”^[7]

One of Aldisert’s most popular books is Winning on Appeal, a guide to appellate brief writing and oral argument. In a foreword to the third edition, published after Aldisert’s death, Supreme Court Justice Samuel A. Alito Jr. wrote that “[f]or any attorney who wants to know how to win on appeal, this is where to look.”^[8] Aldisert also published a novel, a memoir, and other works on law and jurisprudence.^[9]

The expanding academic literature on judicial opinion writing includes general handbooks^[10] and works on judicial ethics,^[11] writing style,^[12] thinking,^[13] and the role of law clerks,^[14] to name a few. Aldisert published the first edition of Opinion Writing in 1990 as both a teaching manual and source of reference for judges and their clerks.^[15] He drew for inspiration upon his many years on the bench, as well as discussions held at the Institute of Judicial Administration at New York University and the Federal Judicial Center in Washington.^[16] The first edition was for many years given to all newly commissioned federal judges but was otherwise limited in its distribution.^[17]

Aldisert published the second edition of Opinion Writing in 2009 with the help of his law clerks.^[18] Because this was the first time the book would be available publicly, Aldisert and his clerks published a law-review article the same year about the relationship between opinion writing and opinion readers.^[19] The article contains much of the same advice given in Opinion Writing, but with a focus on the interactions between “readers and users of judicial opinions.”^[20]

Opinion Writing is now in its third (2012) edition. This version expanded its audience from trial and appellate judges to administrative-law judges, arbitrators, and law clerks.^[21] According to Third Circuit Judge Michael Chagares, it remains a “go-to book” for judges.^[22]

In his introduction to Opinion Writing, Aldisert wrote that he intended his book for judges — new or veteran — and their law clerks.^[23] But his suggestions on writing style and usage benefit all legal writers.

Opinion Writing contains sections on the theoretical concepts underlying an opinion, the anatomy of an opinion, and writing style. In this column, we discuss Aldisert’s framework for opinion writing and then focus on his advice on writing style and usage.

Concepts Underlying an Opinion and Its Anatomy

“If a judge wants to write clearly and cogently, . . . the judge must first think clearly and cogently, with thoughts laid out in neat rows.”^[24]

Aldisert opened Opinion Writing noting the progress jurisprudence has made from 500 years ago, when one prominent English jurist justified an opinion by writing only this: “Sir, the law is as I say it is, and so it has been laid down ever since the law began . . . though we cannot at present remember the reason.”^[25] Aldisert also noted the many problems that plague the judicial system and opinion writing, including the rise of unnecessary appeals and a rapid growth in unpublished opinions in the last decades.^[26]

He separated his opinion-crafting advice into the theoretical and the practical. After discussing how a judge should decide whether to write an opinion at all,^[27] he distinguished between the processes of decision making and decision justifying, noting that at the appellate level the opinion-writing process involves several judges and that decisions are often built upon fragile compromise.^[28]

Aldisert argued that in the crucial category of cases in which neither the rule nor the application of the law is clear, the court faces five recurring questions:

“When confronted with competing statutes or constitutional clauses, which should prevail (and why)?
“Which of several competing legal precepts should prevail (and why)?
“Should we extend one precept by analogy while restricting another to its four corners (and why)?
“Should we meet the question of statutory construction in the abstract (and why)? What is the legislative intent (and how do we divine it)?
“Is an element of a previous decision binding precedent or dictum (and why)?”^[29]

The book then describes in detail the seven parts of an opinion: the orientation paragraph(s),^[30] the statement of jurisdiction,^[31] the summary of issues to be discussed,^[32] standards of review,^[33] the facts,^[34] reasons for a decision,^[35] and a disposition.^[36]

Writing Style

“When addressing a jury or a court, great advocates develop a rhythm that commands attention and persuades. Yet many eloquent speakers — judges, lawyers and law professors — abandon this style when it comes to writing.” ^[37]

Find the “middle ground” of footnoting. Footnotes have “proliferated to intolerable levels,” particularly in the federal courts, argued Aldisert.^[38] He suggested that writers strike a balance between the overwhelming “show-and-tell” style common in U.S. Supreme Court opinions and the Illinois Supreme Court’s minimalist practice of abstaining from footnotes altogether. Aldisert noted that it’s improper to use footnotes to respond to arguments not made by the parties or to distinguish a case that could have been cited but wasn’t.^[39]

Avoid “law review syndrome.” Aldisert cautioned against stilted writing of “the pedantic style used by academics.”^[40] He observed that recent graduates serving as law clerks tend to be overly timid in their writing. That’s why their drafts include unnecessary footnotes and counterpoints, he wrote.^[41]

Establish an effective rhythm to your writing. Aldisert argued that just as in spoken argument, a strong command of rhythm will bolster legal writing.^[42] As with any great composition or speech, preparation and revision are the keys to creating the proper “beat” in a work of legal writing.^[43]

Read the greats. Opinion Writing includes excerpts from opinions of renowned jurists past and present. Aldisert began with the trio of Holmes, Cardozo, and Hand and included examples by several other legal-writing greats.^[44] In brief introductions to their writings, he praised their expressiveness, style, and ability to make complex legal concepts clear. From the nearly 30 pages of excerpts included, it’s clear that Aldisert saw value in studying the greats.^[45]

Write to be clear and interesting. Effective writing must be clear, lean, and excite the reader’s interest, Aldisert advised.^[46] He included with this advice some suggested rules to follow, with the goal to avoid “undesirable reactions in the reader, ranging from boredom to hostility.”^[47]

Avoid the scissors-and-paste approach to quotations. Is each quotation in a written opinion necessary and pertinent? Aldisert cautioned against the tendency to plop down lengthy block quotations lest a judicial opinion transform into a law lecture. In that case, the quotation might only confuse readers.^[48]

Vary sentence length and structure. Here, Aldisert returned to beat and rhythm. He advised judges to modulate the length and types of sentences in their opinions, citing the advice of famed architect Garrett Eckbo: “Never put two stones the same size next to each other.”^[49]

Master the trick of anastrophe. Anastrophe refers to the writing technique of inverting word order for rhetorical or poetic effect.^[50] Although Aldisert cautioned that this technique should be used sparingly, he suggested that writers use it “where it will achieve the effect you want better than a straightforward construction would do.”^[51] He provided alternative versions of the same sentence as an example of effective anastrophe.

“Gone are the days when my heart was young and gay.”
“The days when my heart was young and gay are gone.”^[52]

Let your sentence unfold in the way that serves you best. Even when the effect isn’t poetic, every English sentence has an optimal word order. Aldisert compared the importance of selecting the right order to a comedian’s delivery of a punchline, advising that selecting the perfect word or reordering a sentence will make writing much more effective.^[53]

Lighten your citations and authorities. Aldisert urged judges to confine citations to their own jurisdiction before referring to decisions from other courts.^[54] Additionally, he recommended that they confirm in each draft opinion that (1) the law cited is current and in the appropriate citation format, (2) every quotation is accurate down to the punctuation mark, (3) style is consistent from page to page, and (4) all typos are fixed.^[55]

Judge Aldisert’s Pet Peeves

Pet peeves vary from judge to judge. But all legal writers would be wise to consider Aldisert’s advice on grammatical slipups to avoid.

Don’t use “since” and “because” interchangeably. Although it’s not grammatically incorrect to use “since” in place of “because,” Aldisert advised that legal writers to avoid confusing their readers by limiting the use of “since” to a temporal sense: “from then till now.”[56]

Use “due to” only as an adjectival phrase. “Right: ‘The crop failure was due to continuing drought.’ Wrong: ‘Due to the continuing drought, the crop failed.’”[57] Aldisert believed that legal writers should use “due” to mean owed or owing, payable, suitable, fitting, or “as much as required.”[58]

Limit the use of “despite.” “Despite” should be used as a noun, argued Aldisert. Although “despite” is commonly used as a preposition in place of “notwithstanding,” dictionary definitions (spite, injury, insult, malice) refer to nouns.[59]

“Posit” is law-school jargon. Aldisert suggested that when an opinion wishes to “assume as fact,” it should use those words. Seeing terms of academic jargon in academic opinions is a clear sign that the writer is “a law clerk, not a judge.”[60]

Suggestions for Good Writing and Editing

“There is no such thing as good writing. There is only good rewriting.”^[61]

Opinion Writing also dedicates a chapter to the proper role of judicial law clerks. The chapter provides helpful editing and writing tips.

Write succinctly, clearly, and precisely. Writers should, beyond all else, ensure that readers will understand their point. Accordingly, suggested Aldisert, legal writers should avoid flowery language, literary devices, and “unnecessarily abstract or complex words and phrases.”^[62] He also suggested that law clerks leave any embellishment to the judge’s discretion.^[63]

Conduct a proper final edit. Before presenting a final draft to their boss (the judge), Aldisert told law clerks to conduct a thorough edit.^[64] Specifically, he recommended a “reading rainbow” procedure in which more than one clerk reads every word of the document aloud. This way, issues of spelling, citation, and usage will be caught before the draft reaches the judge’s desk.^[65]

Be accurate; give appropriate references. The parties’ briefs must be checked for accuracy and exaggeration. Especially when they incorporate citations from the parties into a statement of facts, Aldisert said, law clerks should cite-check all references to depositions and other exhibits.^[66]

The Legal Writer will continue its series on what we can learn from the great writing teachers —lawyers and non-lawyers.

Gerald Lebovits ([email protected]), an acting Supreme Court justice in Manhattan, is an adjunct at Columbia, Fordham, and NYU law schools. For his research, he thanks Andrey Burin (Columbia Law School), his judicial fellow.

[1] Golden Pen Award Acceptance Remarks of the Honorable Ruggero J. Aldisert, 15 Legal Writing: J. Legal Writing Inst. xxi (2009).

[2] Ruggero J. Aldisert, Opinion Writing xxv (Carolina Acad. Word Press, 3d ed. 2012).

[3] Id.

[4] Joseph F. Weis Jr., Ruggero J. Aldisert, Longtime Colleague and Friend, 48 U. Pitt. L. Rev. xviii (1986-1987).

[5] Biographical Directory of Federal Judges—Ruggero Aldisert, Fed. Judicial Ctr., https://www.fjc.gov/history/judges/aldisert-ruggero-john.

[6] Id.

[7] William J. Brennan Jr., Tribute to the Honorable Ruggero J. Aldisert, 48 U. Pitt. L. Rev. xiii (1986-1987).

[8] Tessa L. Dysart, Leslie H. Southwick & Ruggero J. Aldisert, Winning on Appeal 20-21 (3d ed. 2017).

[9] The Judicial Process: Text, Materials & Cases (2d ed. 1996); Logic for Lawyers: A Guide to Clear Legal Thinking (3d ed. 1997); Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003); Road to the Robes: A Federal Judge Recollects Young Years & Early Times (2005).

[10] See, e.g., Federal Judicial Center, Judicial Writing Manual: A Pocket Guide for Judges (2d ed. 2013); Joyce J. George, Judicial Opinion Writing Handbook (4th ed. 2000).

[11] See, e.g., Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008).

[12] See, e.g., Ross Guberman, Point Taken: How to Write Like the World’s Best Judges (2015); Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421 (1995).

[13] See, e.g., Joel Cohen, Blindfolds Off: Judges on How They Decide (2014); Richard A. Posner, How Judges Think (2008); Benjamin N. Cardozo, The Nature of the Judicial Process (1921).

[14] See, e.g., Aliza Milner, Judicial Clerkships: Legal Methods in Motion (2011); Abigail L. Perdue, The All-Inclusive Guide to Judicial Clerking (2017); Jennifer Sheppard, The Write Way: A Judicial Clerk’s Guide to Writing for the Court, 38 U. Balt. L. Rev. 73 (2008); George Rose Smith, A Primer of Opinion Writing for Law Clerks, 26 Vand. L. Rev. 1203 (1973).

[15] Opinion Writing, supra note 2, at xv-xvi.

[16] Id. at xxiii.

[17] Id. at xix.

[18] Id.

[19] Ruggero J. Aldisert, Meehan Rasch & Matthew P. Bartlett, Opinion Writing and Opinion Readers, 31 Cardozo L. Rev. 4 (2009).

[20] Id. at 4-5.

[21] Opinion Writing, supra note 2, at xix.

[22] Brian Bowling, Retiring Circuit Judge, a Carnegie Native, “Helped Tutor Generations,” Pittsburgh Tribune-Review, Sept. 14, 2014, available at https://archive.triblive.com/news/pennsylvania/retiring-circuit-judge-a-carnegie-native-helped-tutor-generatiions (last visited Jan. 28, 2020).

[23] Opinion Writing, supra note 2, at xxix-xxxi.

[24] Id. at 10.

[25] Id. at 3.

[26] Id. at 5-9.

[27] Id. at 15-25.

[28] Id. at 31.

[29] Id. at 35.

[30] Id. at 81.

[31] Id. at 63.

[32] Id. at 93.

[33] Id. at 65.

[34] Id. at 107.

[35] Id. at 117.

[36] Id. at 148.

[37] Id. at 239.

[38] Id. at 231-32.

[39] Id.

[40] Id. at 239.

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 242-71.

[45] Id.

[46] Id. at 274.

[47] Id. at 274-76.

[48] Id. at 274.

[49] Id.

[50] Frank Gibbard, Historical Perspectives, Guard Your Pistols and Your Pronouns, 48 Colo. Law. 20, 21 (Dec. 2019).

[51] Opinion Writing, supra note 2, at 275.

[52] Id.

[53] Id.

[54] Id. at 273.

[55] Id.

[56] Id. at 276.

[57] Id.

[58] Id.

[59] Id. at 277.

[60] Id.

[61] Id. at 166.

[62] Id. at 167.

[63] Id.

[64] Id.

[65] Id.

[66] Id. at 166.