The purpose of this article is to focus the attention of the appellate bench on the precedent-setting function of the judicial opinion and to convince judges that the techniques they deploy in opinion writing should be geared to achieving this primordial function. At the article=s end I offer a Aprescription@ to cure common maladies in judicial opinions. My advice is mainly directed at the appellate judge (and the judge=s writing team) assigned to express the majority view, a view destined to become part of a jurisdiction=s case law. That judge must write collaboratively, of course, to maintain the majority coalition, but the structure and style of the opinion will be that of the main writer.

Although obvious it needs stating up front that the written judicial opinion is critical to legal systems like that of the United States in which decisions of judges and their justifications constitute law, called Acase law,@ which will control the result when comparable controversies appear again in court. Hundreds of millions of governing rules are created by the tens of millions of cases contained in the multitudinous volumes of state and federal reporters. One would imagine that the communicative quality of the judicial opinions establishing these rules, particularly their capacity to be understood by professional readers, would be of constant concern both to those who create them and to those who consult them in their daily work. Yet one finds in the literature about judicial opinion-writing little emphasis on the precedent-setting function. Rather, the writers have emphasized persuasion as the main communicative task of the opinion. One 600-page book dedicates but a few brief paragraphs to the law-setting function of a judicial opinion and offers nothing to assist judges in writing for the future. This book defines the appellate opinion as Aa written essay consciously designed to persuade the audience that the result is correct.@ Even Judge Ruggero Aldisert in his otherwise marvelous book Opinion Writing fails to identify workable precedent-setting as the primary goal of appellate opinions, surprisingly given his mastery of and interest in legal method. He conceives a judicial opinion=s purpose to be Ato convince any reader that sound reasons support the court=s decision.@

But what is the need to persuade? The judge=s decision-with-opinion, even one miserably unconvincing, is a writing imbued with the lawmaking power. Indeed, the judicial precedent is law, although the rules of law it establishes are extracted and applied by future users and are not set in textual form by the precedential opinion. Once we accept the proposition that a judicial opinion, whether persuasive or not, creates law we understand that communicating its rule decisions to future users is an appellate court=s principal challenge.

This, then, is the article=s main thesis: the primacy of precedent-setting as a judicial opinion=s function and the correlative idea that the primary audience for the judicial communication comprising an opinion must be the world of future lawyers and judges who, as part of their daily professional work, have to know what rights and duties are imposed by law. The doctrine of stare decisis vests the judicial opinion with the quality of law.

The judicial precedent as a source of law may even be more powerful than the statute because the rule a precedent creates is Aretroactive,@ meaning that it applies backwards in time. It governs conduct which occurred before the precedent issued but which falls within its ambit. This means that when a judicial opinion is published, a lawyer studies it not just academically, that is, in the happenstance that a similar case should appear at the lawyer=s door, but as potentially determinative in cases currently pursued. Competent lawyers, thus, study each new judicial opinion in jurisdictions where they practice and in fields where they specialize.

Of course future disputes will also come to be governed by today=s judicial precedent. Years after its issuance lawyers will consult it to ascertain rights and duties relevant to their clients= interests. Judges will come to interpret and apply the precedent in those matters which fail to settle.

The court=s precedent is an act of government and the judges constituting a court, like other government officials, want to govern well. They want to make sound law, but this objective is not the subject of this essay. Instead, what this essay treats is the writing of the opinion after the court has determined which rule is the most beneficial. Knowing that the primary audience is the large body of future lawyer and judge users helps us understand the appropriate communication techniques for that primary audience. The opinion must be crafted in a way which blocks misreadings and distortions which, in turn, might thwart the rule=s correct application in resolving disputes. This essay=s basic premise is that techniques can be successfully employed to this end, techniques which recognize how crafty lawyers construct arguments from judicial opinions and which can be deployed to foil those constructions.

What the law requires is the question posed to appellate courts. The delivery of the answer is one of the most famous moments in law: a high court announcing its judgment and opinion. The celebrity status of this event tends to obscure the countless moments in lawyers= offices when the same question is asked and answered, quietly but deliberately. This essay considers the uncelebrated lawyer=s moment calculating the content and effects of law as the most critical time for the law to be readily understood, sharp-edged, and insistent in its message.

For each renown appellate case, thousands of law-to-fact moments exist in the shadows of legal practice or in the records of trial courts. From the very onset of a dispute and the employment of lawyers to resolve it, the content of law, including judicial precedents, comes into play. It may be that a lawyer defers his detailed examination of relevant legal sources until critical crossroads, such as the first serious settlement discussion. Until then he may guide his actions and communications by general principles of law which form part of his professional makeup without any or with only casual study. Indeed, if willing to sacrifice precision for speed, a lawyer may end the matter without ever having consulted the law=s details. But this essay concerns itself exclusively with human matters of major concern in the hands of serious, competent lawyers striving to maximize their clients= goals.

When important settlement negotiations or transactional bargaining occurs, competent lawyering insists that the law=s answers to the critical questions in dispute have been sought. Prior to even an opening settlement offer the lawyer on each side is duty bound to have consulted relevant statutes and decisional law. In theory the lawyer asks what result the law will likely cause to occur should settlement fail and the matter is litigated. But the lawyer is not an academician seeking the truth. He has a client who benefits from a particular answer, whether the true one or not. As his client=s negotiator the lawyer seeks leverage against the opponents, and leverage is created only by the answer AWe will win in court.@ With this conclusion in mind the lawyer will enter his study of relevant statutes and decisions and (voila!) find the needed answer there.

I suppose the ethical and competent lawyer will occasionally find a negative answer in the law, an answer which dooms his client=s cause. The lawyer=s best techniques cannot dislodge this adverse conclusion. The claim is then withdrawn, the demand lowered, or alternative resolutions sought.

But those with experience in real law know how infrequently the conclusion AWe have no case@ is reached. The causes of this accepted phenomenon are multiple. Lawyers are exceptionally creative and crafty. Much of their professional training and practice consists of developing reasons why their clients are right. If not naturally adept at justification, they become so by practice. Even the once naive, simple, and forthright eventually become warrior lawyers.

Another cause of the legal dialectic is the inevitable indeterminacy of much legal material. Rules are constructed of words, and words are imperfect expressions of thought. This is particularly true of the abstract words used in law. Moreover, the process of subsuming very particular human actions under very general legal expressions is tricky and imprecise. In Davis v. Monroe County Board of Education Justice O=Connor used the phrase Asevere, pervasive, and objectively offensive@ in an attempt to limit the cause of action for student sexual harassment to exceptional cases, but these words by themselves cannot effectively circumscribe the claims arising from the infinite variety of student to student contact. The Kennedy dissent approached the truth in this comment:A[T]he majority=s opinion purports to be narrow, but the limiting principles it proposes are illusory. The fence the Court has built is made of little sticks, and it cannot contain the avalanche of liability now set in motion.@

A further cause of legal indeterminacy is imperfect execution of primary legal sources, the subject of this essay. Should I mischoose a word in this writing, or dangle a thought, or talk vaguely little is lost. What I write binds no one. But when a court explains its decision in a judicial opinion, literally every word has a potential future effect on someone=s welfare. From the moment of publication the judicial opinion, and every word within, becomes an instrument for good or evil in the hands of lawyers and judges.

Not only when negotiating at the conference table, but also at the office drafting pleadings, motions, briefs and other documents the lawyer exercises his craft of manipulating legal materials to satisfy client needs. Only modestly effective are ethical restraints not to misstate the law knowingly. Any charges to that effect are easily rebutted by the response Athis was my professional interpretation.@

Imagine now that critical to all this activity is the meaning of a single judicial precedent and the members of the precedent-setting court are blessed (or cursed) with omnivision. They see all lawyers applying the precedent in all settings. These angelic judges will be shocked by what they see. Settlements, trial decisions, contract terms, pleadings, e-mails, and phoned arguments will fly in the face of the law they thought they had created. They cry AThat=s wrong!@ but cannot be heard.

They may eventually be heard. Out of the welter of controversies and cases fomenting in their jurisdiction one will sometimes crystallize into an appeal which affords the court a second chance to write clear law on the particular topic. But of course this second precedent itself will be subject to varying readings in a widening gyre of indeterminacy.

HOW ZEALOUS LAWYERS CONSTRUCT ARGUMENTS

In writing opinions for the future, judges must expect that each word they pen is potentially usable by lawyers building or defending clients= causes. Judges cannot hope for saintliness or purity in legal method from such lawyers. Rather, they must perceive them (quietly, of course) as licensed scavengers foraging for fare. The tasty morsels they seek are tidbits from the smorgasbord of judicial opinions gathered from near and far. Scavenger advocates toss these into the pot when confectioning the stew known as the lawyer=s argument.

The lawyer is concerned with the law=s relationship to only one person or entity B his client. ... He is concerned only with his client=s claim. As a result, his prose assumes a hard edge, a dogmatic assertive tone. ... Almost by definition, the lawyer writes not what he believes to be true but what will best advance his client=s interests.

Cast aside is proper methodology, once taught in law schools and still known by older members of the bar. Possessed of a client=s story, the lawyer, in the name of zealous advocacy, pursues advantage. Fine distinctions between holding and dictum, between material and immaterial facts, and between binding and persuasive authority are made only if advantageous.

Such advocacy by lawyers pursuing client goals is the greatest danger faced by judges-writing-opinions. It is sure to occur, can be detained but never stopped, and portends havoc in the legal system. Every word in every judicial opinion is fair game for the lawyer-with-cause. Any argument is potentially constructable for any claim or defense and, in particularly hard economic times, is likely to be built. The only barriers in this nether world of limitless claims and defenses are the tightly worded statute and the tightly worded judicial opinion. In sum, judge-writing-opinion must view lawyer-with-cause as an enemy bent on dismantling the logic and sense and structure of the judicial precedent to serve his client=s interests. The judge must write defensively, making a fortress of the opinion, with strong verbal walls even the most creative lawyer will find hard to scale or breach.

The judge must also write leanly because lawyers prey on excess verbiage in judicial opinions. Gratuitous dicta is troublesome, especially the type which is unnecessary to the opinion=s reasoning and only flashes the writer=s knowledge. Dicta is sure to be gathered and deployed by lawyers in these days of computer searches, segments of briefs on diskettes and in hard drives, and string citations. Instead, dicta must be cautiously woven into the opinion=s reasoning, serving mostly to illustrate the boundaries of decision or clarifying an argument.

Justice O=Connor=s opinion in Davis v. Monroe County School Board, which permitted lawsuits against schools for extreme sexual harassment of students by students, demonstrates a beneficent deployment of dicta. She stated that, on the injury element, a mere decline in grades is not enough to state a cause of action for student sexual harassment, nor, on the conduct element, are taunts, teasing, or offensive names. None of this was relevant to the Davis case facts, but it helps future users of the precedent to understand by contrast what would be actionable conduct within the phrase Asevere, pervasive and objectively offensive@ conduct. Being so clearly dicta, far removed from the student conduct charged in Davis, it is unlikely to cause future distortion and disruption. But even dicta as beneficial and benign as this is sure to find its way into lawyers= briefs: AIn Davis the Court held that teasing and taunting were not actionable.@ Everything a court writes is potential ammunition in the hands of the common lawyer.

I go beyond dicta and state that every unnecessary word in a judicial opinion is a candidate for future abusive use by lawyers creating arguments. A good example, one that is far from obvious, is a court=s overstatement of case facts. State appellate courts seem to pay little attention to the portion of their opinions which recounts the events giving rise to the dispute, perhaps borrowing it from party briefs or opinions below. This is a huge mistake. Every fact reported by the court is potentially arguable as Amaterial@ to the decision when lawyers are manufacturing arguments in briefs and other documents. Most lawyers have sufficient imagination to use any reported fact to narrow an unhelpful precedent absent a specific statement in the opinion, a rarity, that the fact is not material. Similarly dangerous in the hands of creative lawyers are a court=s overblown policy justifications for its rule, or historical explorations, or elaborate discussion of the logic which takes it from one point to another.

A court may try to create a Asuper-rule@ out of a modest set of case facts. In Muhammad v. Strassburger, for instance, the Pennsylvania high court wrote: AWe will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action.@ This Aholding@ (quotations, because courts do not write rules of law) flew far beyond the modest case facts before the court. The case concerned tort plaintiffs who later became unhappy with the amount of their settlement, but pointed to no blameworthy attorney conduct causing inadequate compensation. The broad Muhammad language facially precluded thousands of claims much more deserving than the Muhammads=. All competently trained attorneys know this immediately. Lawyer Zealot would have little difficulty, in most forums, having this excess verbiage discounted as dicta. But this has the unfortunate effect of leaving the precedent with no verbal markers. In exceeding its grasp, the court has lost the opportunity to control future interpretations of the precedent through more appropriate word choices.

Another frequent problem with state appellate opinions is that they contain multiple, potentially conflicting rationales for the rule the court creates to decide the case. These may be a logical development of prior rules, or an application of general principles found in the case law, or the court=s sense of justice and morality, or the social benefits achieved by the rule, or the rule=s consistency with history and experience, or any combination of the above. Although the rationales stack up on the same side in the precedent, when tested against variant future facts they may pull against each other resulting in confused and confusing jurisprudence. A proliferation of rationales offers Lawyer Zealot multiple opportunities to argue around the precedent=s substance.

Every reader has read, perhaps unwittingly, dozens of judicial opinions containing rules without reasons. They populate all reporters and casebooks. These are the appellate decisions based wholly on the identification of the precedential rules relevant to the dispute and the subsumption of the case facts under those rules. Called Aformalism,@ this was the prevalent style in American courts at the opening of the twentieth century. Although courts are much more policy oriented at the century=s close and willing, often eager, to discuss overtly the policy choices underlying the precedential rules they create, the formalistic style still resurfaces with some frequency, as a glance at any current state reporter will quickly reveal.

Should a precedent-created rule be Aon point@ and thus dispositive of the current case, why should a court bother to create or uncover justifications for the rule? If less is better, as I advocate, why should a court expand its opinion with explanations why the rule is salutary for the jurisdiction in which it reigns? The answer is that the methodology for interpreting the scope of a precedent is dependent upon an understanding why the precedent-setting court thought the rule it deployed to resolve an issue was the better or best one. Lacking such knowledge or being forced to speculate about the bases for the rule, the later precedent-user is reduced to the vagaries of the legal syllogism. He can only subsume the current facts under the rule as he, or a secondary source, or the court itself phrased it, not knowing whether the syllogistic result makes sense. Form cannot be tested against function. The relevance of factual variations in the current case, and there always are variations, become difficult to assess. In contrast, a rule with reasons flourishes or dies in later soil with some certainty because the user can examine the rule=s consequences in the current case against its known ends. And doctrinal variations and exceptions become viable. AKnowing the case law=s purpose, the current [user] can assess whether one or more new facts should be ascribed >materiality,= meaning the capability of spinning off an exception ... or even a new doctrinal branch.@

Judicial opinions are not an appropriate situs for intellectual candor or musing. Dictionaries serve up multiple definitions in statutory cases, philosophers advance contrary moral positions, experience offers richly contradictory lessons, a rule may move human and institutional behavior in one direction or another or none at all, and logic is rarely linear. Once a court has chosen a particular perspective as most appropriate to a particular set of case facts, it could openly discuss the difficulties it encountered along the way and the advantages of alternative perspectives offered by dictionaries, philosophers, historians, scientists, and logicians. While appropriate in the academy, such intellectualizing cannot produce workable jurisprudence. The court=s mission is not to open debate, as might a professor=s classroom questioning, but rather to establish governing case law that can be understood quickly and decisively by a legion of future users. To this end it must state its rule rationales simply, openly, clearly and definitively.

We may also indentify impossible-to-apply rationales as a separate category of troublesome judicial practices. This is perhaps the most pernicious contribution of American appellate courts to the legal system. Part of the oath of judicial office should be a pledge to step back and ask ACan the doctrine I just penned be understood and applied with consistency in future cases?@ This is a tough but critical question. The difficulty resides in the fact that the judges may only see that the doctrine resolves the current controversy happily. When they hypothesize other forms of the controversy in an endeavor to presage the doctrine=s future workability, as good lawmakers do, those forms are likely to be much akin to the dispute which spawned the precedent, given normal limits on human imagination. The doctrine then passes muster by happily resolving those imagined disputes too. But life never travels in the courses we predict and future unimaginable disputes will come to be dubiously governed by the doctrine.

Yet the question must be asked and answers sought. The rule will live on doing the law=s work long after its first effect has been felt. Should it function badly in future settings, the work of the precedent-setting court was flawed when measured against the goal of good government. Thus, when the judge crafts a combination of words which seem to function well in the case before him, much mental work remains. Remaining is the ultimately more important task, one which I suspect appellate judges frequently shirk, of gauging the rule=s future effects.

My work is at an end. Remaining is merely a summary of what judicial opinion writers must do to create successful precedents. By Asuccess@ I mean definitiveness in the body of law, precedents which solve rather than provoke disputes.

1. The primary audience for judicial opinions must be considered to be professional users, mainly lawyers assessing their clients= rights and duties under judicial precedents.

2. The lawyer=s duty of zealous advocacy assures that lawyers will use interpretive techniques to read judicial precedents in a way which will advance or at least not block their clients= interests.

c. Reporting of lower court reasoning or lawyers= arguments should be done only when it serves to clarify the court=s reasoning. The court should discuss rejected reasoning only when such would clarify the reasons it has selected.

c. state the court=s holding explicitly, as carefully as if it had the power to write law.

13. ATrouble@ cases should be identified and written with extreme care and caution. These involve appellate issues which will arise many times in the future, which utilize difficult legal concepts and principles, and which require the accommodation of multiple interests and values.

Once the main task of the appellate opinion is identified as establishing future law (the work of dispute resolution ends with the decision), brilliant writing takes new form. The mark of greatness becomes how well the opinion=s inchoate rule is understood by generations of future lawyers. These future readers recognize the authority of precedential texts and consult them not for justice but for rules and prescriptions. Applying the precedent to a multiplicity of controversies with variegated facts, future law predictors and law appliers may or may not come away with confident answers. If they do, in mundane cases the appellate writer has done well. If they do, in complex cases applying malleable principles the appellate writer has performed brilliantly.

Rhetoric need not be utilized for its power of persuasion because, right or wrong, the precedent binds. The appellate court=s primary duty is to reason and write clearly and succinctly, with constant vigilance against future misreadings and distortions. This duty can be executed quite well with pedestrian English and only mildly sophisticated reasoning. Indeed, the best appellate opinion may well be the one of three or four pages which isolates the appeal=s one serious issue, states it clearly, crisply recounts only the case facts needed for that issue, states the controlling principles and rules from the state=s case law bank, applies them swiftly and surely, notes why the decision is just and the rule beneficial, and ends with its holding, carefully crafted, and disposition. The best opinion disdains high-falutin language, skips esoteric asides, avoids analytical meandering, discards marginally helpful research products and side themes, and hopes only to be understood.

But all of this can be done with style too. Good writing need not be boring. Justices need not give up their role as Astars of the judicial theater [with] the juiciest parts... .@ Within the prescription is ample room for writing creativity, creativity that is always obedient to the master goal, clarity. And, not surprisingly, the cleaner and sharper the opinion, the more likely it is to convince if that be the judge=s want. As long as poetry does not sacrifice precision, the judges may employ the Amnemonic power of alliteration and antithesis [and the] terseness and tang of the proverb and the maxim.@ Observe the writings of Holmes, Cardozo, Aldisert, L. Hand, Black: clean, clear, crisp, yet profound and sparkling with sentences that leap into your heart and phrases that ring into the future.