“Judges as Persuasive Storytellers,” With U.S. Judge Stephanos Bibas [20:08-25:09]

After that comes the facts section. I approach the facts like a sculptor, trying to chip away the most inessential parts so the key facts come through. If it doesn't serve the shape of the sculptor, forget rid of it. Readers get lost in the sea of names and exact dates, or worse yet, acronyms. Most cases were all around a few named key named figures and usually a rough time frame is enough. Give the reader the basics, the who, what, when, where, and why. It helps to start the story with a protagonist and usually move chronologically. Use topic sentences to orient the reader to each chunk of narrative. The facts section should be an overview and then more complete details often fit better later on in analyzing or discussing each issue rather than saying everything wants in the facts and then again regurgitating it in the body. It's also helpful to use themes. In a criminal case, it's not a bad idea to highlight the strongest evidence of guilt and any weaknesses or gaps. The message is that the conviction is sound or unsound. In a contract case, explain what the parties agreed to and how or why one side failed to live up to its promises. If a party said one thing before, yet now changes the tune of litigation, flag the inconsistences perhaps quoting the party's own words or contractual language. One of my favorite rhetorical techniques is hoist the other side by its own petal. You don't have to say they're being hypocrites. Just quote the language that's at odds with what they're arguing now. In the procedural history, it lied what doesn't matter. No one cares what number each count bore in the criminal indictment. Mentioned jury instruction only if there's a dispute over it in the case. Name the lawyer only if his conduct is in question. Say because he allegedly gave ineffective assistance to counsel. If the basis for jurisdictions obvious and uncontested, no need to delve into that. It's usually enough just to state the uncontested standard of review in a sentence or two. One shibble at the writing, by the way, is avoid the passive voice. And it's true, the passive voice ledons and dendons prose. But sometimes it helps to keep the spotlight where you want it. In a paragraph that's all about a criminal defendant, it can distract readers to shift the subject to the police who arrested the defendant, the grand jury that indicted him and the petty jury that convicted him. Maybe better just to write the defendant was arrested, convicted, the charge and convicted by the jury of such and such crimes. The legal analysis is the meat of the opinion. Where there are multiple issues, break them down into separate parts, sections, subsections, as needed to create manageable chunks. Usually put the most important issue up front, the least important at the end. But sometimes, of course, there's a jurisdictional issue needs to come before the merits or damages naturally comes after liability. It also normally flows better to first make a formative arguments and then deal with counter arguments towards the end of each section. So explanatory headings help, too. Instead of just saying the contract claim, you could summarize the point, short line. Despite Smith's unilateral mistake, the contract binds him. Then the reader knows what to watch out for and umbrella paragraphs after headings underscore that message for shadowing the points to come. The same, by the way, goes for smaller units of text. Almost every paragraph should have a topic sentence that signposts its point. Yet many legal writers launch straight into citation at the start of each paragraph. In round versus Jones, 1-23, F-4-6-78, 3rd Circuit 2025, the 3rd Circuit, dot, dot, dot, dot. Organized paragraphs not around cases, but around principles for points. Push the authorities down into supporting positions later in the paragraph. If you use mid-sentence citations, they break up the block. The ordinary people just indigestible. I'll tell you, Justice Barrett is a master at guiding readers. As a newer justice, he often has to write dry technical opinions yet she guides her reader through complex subjects with ease. So she had a recent opinion for the court in ZF Automotive versus Luxher. She explained private arbitration panels don't count as foreign or international drug tribunals under discovery statute. Sound pretty dull, right? But she kept the readers on track with a helpful introduction, with ample signposting, with short paragraphs, and instructive topic sentences. Next, let me talk about the craft of writing accessible stories. First, how do you focus and prune an opinion? We judges know it's good to be clear and concise. People can parrot that, but it's harder to do it. So we may not have learned how to do it in practice. As judges, we have more freedom in writing than litigators do. We need to learn how to use that freedom. I was really amazed when I realized, I got a judicial commission on my wall. I don't have to follow the blue book religiously anymore, where it's dumb, or it's going to interrupt the opinion. I can vary from it. I don't have to cover my rear with a footnote for every subsidiary point.