Thoughts on Legal Writing from the Greatest of Them All: BENJAMIN N. CARDOZO

Thoughts on Legal Writing from the Greatest of Them All: BENJAMIN N. CARDOZO

11.1.2019

By Gerald Lebovits

“The masters are content to say, ‘The elect will understand, there is no need to write for others.’“¹

Benjamin Nathan Cardozo, an Associate Justice of the United States Supreme Court who before that was the New York State’s Chief Judge, is known for his legal essays, writing style, and influence on the American legal system.² He was born in 1870 in New York City.³ At age 15, he attended Columbia College and then Columbia Law School, from which he never graduated.⁴ He was admitted to the New York bar after working at his brother’s law firm.⁵ Cardozo was appointed to Supreme Court in 1932 to succeed Oliver Wendell Holmes, Jr.⁶ He served until his death in 1938.⁷

Cardozo is remembered for writing judicial opinions that redefined the law, such as MacPherson v. Buick Motor Company⁸  and Palsgraf v. Long Island Railroad Company.⁹ Due to his lasting impact on American common law, his opinions are still cited frequently.¹⁰ The brilliance of his works has led to the phrase “He’s no Cardozo” to refer to individuals of lesser ability.¹¹

Yet commentaries on Cardozo’s writings are mixed.¹² Seventh Circuit Judge Richard A. Posner extolled Cardozo as one of the greatest American judges.¹³ But Yale Law Professor Leon S. Lipson famously compared Cardozo’s opinion writing to a “thaumatrope,” a device that creates an optical illusion¹⁴ An anonymous essayist later identified as Second Circuit Judge Jerome N. Frank¹⁵ wrote that Cardozo emphasized the judicial virtue of clarity but found Cardozo’s own writing confounding.¹⁶ In Frank’s scathing commentary, he distinguished Cardozo’s scholarly ability from Cardozo’s fascination with writing like old English judges.¹⁷ But New York Chief Judge Judith S. Kaye admiringly wrote that Cardozo’s writings displayed his “gift to articulate” the law persuasively, “in words that fix the principle forever.”¹⁸

Cardozo’s 1925 Yale Review article, Law and Literature, explores judicial-opinion writing; it might more accurately have been titled How to Write a Judicial Opinion.¹⁹ Cardozo wrote the article to instruct judges on writing opinions, but he devoted two pages to lawyers’ persuasive writing. The article’s significance led to its simultaneous re-publication upon Cardozo’s death by Columbia, Harvard, and Yale’s law reviews.²⁰

STYLE

“I think, not merely that style is not an evil in the Sahara of a judicial opinion, but even that it is a positive good, if only it is the right style.”²¹

Form and substance are inseparable. Cardozo worried that judges misunderstand the interplay between judicial style and substance. Form isn’t a manner of decorating substance; it’s the vehicle to convey substance, he explained. Writings like the tightly worded Code of Napoleon are stylized by the stringency of their words.

Choose the level of details to make the decision clear. Cardozo declared that the “sovereign virtue” of literary style for judicial writing is “clearness.”²² Belaboring details detracts from clarity. But, he wrote, too many generalities will lead to omissions. “The picture cannot be painted if the significant and the insignificant are given equal prominence.”²³

Know that your words will be twisted. Cardozo noted that judges must permit themselves a margin of error and avoid the temptation to over-qualify statements to shield against potential errors. After a lawyer writes a brief dissecting a judge’s opinion, the judge will see “the limitations of the power of speech, or, if not those of speech in general, at all events [their] own.”²⁴ Regardless of fault, “[o]ne marvels sometimes at the ingenuity with which texts the most remote are made to serve the ends of argument or parable.”²⁵ Cardozo told judges to study old opinions to avoid repeating old mistakes.

Clearness alone will not suffice. To write clearly, Cardozo explained, a judge needs “persuasive force,” “sincerity and fire,” “the mnemonic power of alliteration and antithesis,” or “the terseness and tang of the proverb and the maxim.”²⁶ Clear writing, he argued, benefits from literary devices to facilitate reading and understanding.

Humor is controversial. Humor can bring the law to life, making it approachable to the less legally inclined public.²⁷Judges may use humor when it’s “inherent in, relevant to, or complements the subject.”²⁸ But humor targets litigants who came to the court seeking justice without giving them a way to respond.²⁹ Additionally, humor suggests to its targets that they weren’t heard.³⁰  Dean William L. Prosser argued that the bench is no place for levity; litigants await decisions that affect their intimate interests.³¹ Humor is justified only by its success, Cardozo stressed. Attempting humor as the framework for writing the opinion is a risky decision. Cardozo “preach[ed] caution.”³²

The architectonics, or the structure of the opinion, directs the reader. Cardozo instructed judges to begin opinions with a short issue statement that readers will confront throughout the opinion. Judges, he advised, should follow up their issue statements with an outline of the full, but only the essential, facts. They should avoid facts that’re merely decorative or coincidental, Cardozo taught. If the facts are laid out proportionally, the conclusion will flow inevitably.

CLASSIFYING JUDICIAL WRITING

“The movement from premise to conclusion is put before the observer as something more impersonal than the working of the individual mind.“³³

Cardozo discussed six types of judicial writing: “magisterial or imperative”; “laconic or sententious”; “conversational or homely”; “refined or artificial”; “demonstrative or persuasive”; and “tonsorial or agglutinative.”

Cardozo branded magisterial or imperative as the highest type of judicial-opinion writing. This style is written with the calm confidence of authority and is unadorned with illustration or analogy. Such an opinion descends straight to the conclusion and skips the intermediate steps. Cardozo noted that judges don’tt need to justify their writing when they’re “the mouthpiece of divinity.”³⁴ Cardozo demonstrated this type with quotations from Chief Justice John J. Marshall, who composed forcible statements without “blurred edges or uncertain lines.”³⁵

For changing areas of the law, this unapologetic writing style may be ill suited. Cardozo quoted Justice Louis D. Brandeis as writing that “‘[t]he process of inclusion and exclusion, so often applied in developing a rule, cannot end with its first enunciation.'”³⁶

Cardozo explained that the laconic (curt) or sententious (judgmental) type, and the conversational or homely type, blend into each other at different degrees. The laconic or sententious is useful when the law becomes too complex to fit into neat maxims. The conversational or homely type uses statements that feel so common to reality that they seem too obvious to reject, Cardozo argued. These writing styles often include statements that make the audience feel included in the deliberation process. Precise word choice can impress emotional value on the reader.

For writing that requires “delicate precision,”³⁷ Cardozo felt that the refined or artificial type can be helpful. But Cardozo warned that using this type cavalierly risks “preciosity or euphuism,” or an overly affected, elaborate, or refined piece of writing.

For a well-researched, almost scientific, feel, the demonstrative or persuasive type uses the illustration, analogy, history, and precedent that the magisterial or imperative form rejects.

Cardozo urged judges not to write opinions using a succession of precedential quotations followed by a short concluding paragraph to assert that the conclusion is inevitable from the precedent cited. This is the epitome of the tonsorial (clipped, conclusory) or agglutinative (cut-and-paste, glued together) style.

Dissents are often stylistically looser than majority opinions, Cardozo observed. The writer of a majority opinion fears that attorneys will take dicta out-of-context. Dissenters, however, must be given freedom to speak to the future and say their piece on the matter.

“ARGUMENTS AT THE BAR”

“There is, of course, no formula that will fit all situations in appellate courts or elsewhere.“³⁸

Cardozo’s article focuses on judicial-opinion writing, but it concludes by offering advice on what one shouldn’t do when arguing in court:

Don’t deconstruct multiple decisions consecutively – it’s  tiring to the audience.

Don’t over emphasize the intricacies of the evidence.

Don’t try to re-teach the judges; they’re set in their ways.

Don’t let your argument become long-winded.

Don’t take a case to make it great. A case becomes great by what society makes of it, not from some intrinsic quality.

And don’t let an adverse judgment get you down: “Many a gallant argument has met the same unworthy fate,”³⁹ Cardozo philosophized.

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

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