“Judges as Persuasive Storytellers,” With U.S. Judge Stephanos Bibas [15:05-20:08]

We can explain why citizens shouldn't just focus on which results they like. And we constrain politicians and talking heads ability to denigrate our handiwork as just politics and disguise. But it doesn't just help the public. It also helps lawyers help some advise their clients. Makes their jobs easier too. So lawyers don't have to spend as much effort on legal research and publishing over precedents. Even lawyers who are maybe less able or less bright can still understand and advise well. It makes the law more determinate and it teaches good writing habits. And that's an important thing. It counteracts our profession's long standing problem with bad writing. So Miguel de Servante has wrote this 400 years ago in the original novel, Banque Hote. But do not give it to a lawyer's clerk to write. For they use a legal hand that Satan himself will not understand. That's quite the indictment. Finally, writing persuasive narratives helps judges to do our jobs better. Now, clear story telling helps us. That sounds paradoxical. After all, it makes us work harder. It's demanding. But it pushes us to up our game. So if we make our opinions clearer, we improve them. A mentor taught me fuzzy writing conceals fuzzy thinking, writing clearly forces a judge to figure out which issues matter, what flaws or gaps there are in the reasoning. It makes us put our cards on the table. Readers can see the problems with opinions and criticize them. That transparency forces us to do our craft. And here, I think I can slip in and aside, my complaint about some academics and some academic discourse is that when you go and read people in certain schools, there's a certain obfuscation that comes from a very technical vocabulary. And often, I think the emperor has few clothes. And if, in fact, they were translating it into English, they'd see, oh, I just dressed this up into polycyllabic nonsense. Storytelling by contrast forces us to clarify. We have to figure out our points better. We have to buttress the better. We have to weed out what doesn't advance the storyline of the argument. So the whole that results is greater than the sum of the parts. And a clear opinion has to show that it rests solidly unacceptable sources of law. It makes us harder for us judges to smuggle in our policy preferences even unconsciously. It makes us easier to distinguish what's a claim of expertise from what's democratically elected law. Clear opinions are easier for other judges to understand and follow. It makes it harder for other judges to misapply what we've written. And it helps others to understand and properly build on the law in the books. So now, the third part of my argument, how do you tell a persuasive legal story? We used to live in an oral storytelling culture where this is natural. I don't think it's second nature to people anymore. But I think people recognize a good story when they hear it. To do a job well, I need to convince and persuade, which are slightly different things. My various audiences by telling them stories. My stories need to be clear and compelling enough so non-lawyers can follow them. Like good novelists, I try to show and not just tell them. My tone needs to be neutral and trustworthy. My opinions have to be solidly grounded in fact and law. I show my work. I use authority to make clear I'm following the law. Not being arbitrary or writing my own policy preferences into law. But I'm careful not to clutter my opinions with more authority than needed. There are opinions out there that go rat-a-tat machine gun style with cases as a substitute for reasoning and narrative as opposed to a supplement or support. Whenever possible, there's a protagonist, a theme, and a narrative. And there's just enough foreshadowing. An explanation to guide the reader every step of the way. So I don't think it's right that there should be zero redundancy, a little bit of redundancy in opinion as well as just guide the reader along the way. OK, let's start by talking about the anatomy of an opinion. Start with the introduction. The first line or first paragraph of my opinions may sum up the theme or point of the case. I'll focus the reader's attention. Then the next few try to get a very high level overview of the story and issue, orienting the reader what follows. I summarize the court's holding the key takeaway for future cases. Now, why is that two to four paragraph introduction important? With the decline of print journalism, a few newspapers still have reporters to specialize in covering the court beat. I don't count on a beat reporter to actually understand a complex opinion to do the work and is still looking for the public. Rarely do I have David Lat, my audience, to be able to explain my opinion to non-moyers. Most of the time, I have to write my opinions and conclusions, interest and conclusions almost as press releases, to summarize the key facts principles and holders.