“Judges as Persuasive Storytellers,” With U.S. Judge Stephanos Bibas [25:09-30:10]

Like, it's good to be the king. You know I understand. I mean that metaphorically, not literally. rhetoric includes metaphor. OK, first, in doubt. If in doubt, leave it out. As Judge Pritiman said, the lawyer's greatest weapon is clarity, and its wetstone is succinctness. It's important to show our work. It's important to cover the basis. Judges and clerks may spend hundreds of hours crafting opinions. We have to tease apart each legal issue and put it back together again. But the reader needn't see every dead end that precedes the final draft. Cut what you can cut. Some of the best opinions are shortened to the point. Just as Kavanaugh is especially good at pending crisp opinions. So in just four pages in Veo Madero, he explained why Congress could differentiate between the rates of benefits for Puerto Ricans, and those for residents of the continental states. Similarly, he needed just five pages in full versus US bank to resolve a tricky standing issue under a rissa. The rest of us need to read and learn from such exemplary writing. Also, be judicious about using authority. Many legal rules, like standards of review, they're well known. They're not in dispute. Just use a single short citation to move on. Don't move on at all the authority you've found onto a page. Gathering all the authorities is just the first step of research. The next steps need to involve organizing, culling, distilling. Takes more work, but it's worth it. Don't treat citations as a substitute for analysis and reasoning. I don't care how many magistrate judge opinions a litigate found from the Northern Mariana islands. If it's not binding authority from the Supreme Court on my circuit, it matters only if it's persuasive. So explain what makes it persuasive or delete. We judges can unlearn some of the habits we learned as lawyers. Lawyers are partisans. They need to do more to show their work. That means citing more cases, exploring more tensions. But as a neutral judge, I don't need as many citations, especially for uncontested facts. And as the decider, I can sheer off the tangents and issue footnotes. I can thus tell a cleaner story. True. I still need to cover all the party's arguments. Usually I start by laying out general principles of law in the area. Then I make an affirmative case for a holding, respond to each of the losing side's objections, and then apply the holding to the facts. It's important to attack not straw men, but steel men, and give the other side is best shot before knocking it down. The losing party needs to see. I've treated it fairly and respectfully without sarcasm or snark. Writing gets tricky when one side fails to make or preserve an argument. If that forfeiture is debatable, I might explain why the argument fails in any event. It's also important to bracket issues that were forfeited or not raised by this party, but might win in a future case to flag what we have not decided. I don't want the failings of one party or lawyer to warp the developmental law for others. Also, we need to know how to use our law clerks, these young lawyers, fresh out of law school. They're eager to share with us everything they've dug up. They can be like magpies, collecting shiny cases in the research, proudly bringing them back to show off to their judges. And when we ask them to write first drafts of opinions, we understandably err on the side of including everything we might want to seek. We have both the experience and responsibility to sculpt away everything that doesn't need to be in there. One way to do that is tell clerks not to turn their bench memos into drafts. At arguments, parties concede some points. They focus on others. We can then ensure that our opinions leave those issues aside and get to the heart of what's left. Next, writing simply using plain language. Even the shortest opinions useless if it's written in Latinate legalism. If we're going to speak clearly, we have to combine brevity and simplicity. The very best judges can shoot rigid pose pros in favor of engaging the audience, often not always in a conversational style. The average person needn't read John Smith, Smith, or John. And Jane Doe, Doe, or Jane, come before this honorable court in the above caption case. It's not the right, the plane of Sir John Smith and Jane Doe. Making dense concepts are facts intelligible, tarry, but is worth it. Justice Scalia was a master at doing that with vivid stories. So think about how he described the Establishment Clause doctrine, the lemon test that had given generations to Joseph's head in. Quote, like some ghoul in a late-night horror movie that repeatedly sits up in his grave and shuffles a broad after being repeatedly killed and buried. Lemon stocks are Establishment Clause jurisprudence once again, frightening the little children and school attorneys of the Center Mauritius Union