This is a powerpoint presentation designed to teach Administrative Law Judges how to improve their decision writing.

1. WRITING DECISIONS A Matter of Judgment

2. Forward This presentation is made for educational purposes only and not for profit. An attempt has been made to credit all sources. This presentation does not relate to any particular party or case unless otherwise noted. This presentation is not intended to offer any specific legal advice to any party. The presentation has some interactive features and is best viewed in slide show mode. Prepared by Gary E. Payne Chief Admin. Law Judge Okla. State Dept. of Health 2010 gpaynelaw@aol.com

3. “How do I know what I think until I see what I say?” Variously attributable to Winston Churchill and others

4. INTRODUCTION There is an art to both Making and writing administrative decisions. Being able to articulate the reasons for a decision in clear, concise language is a skill nobody is born with and Law schools don’t teach it. Fortunately these skills can be learned and every administrative hearing officer can become a successful scribe.

5. Considering the volume of public encounters with administrative agencies, administrative decisions may be the largest category of legal writing and reading interaction the public has with the legal system. Every hearing officer understands the pressure of issuing a large volume of decisions and the lack of time allocated. Regardless, hearing officers and agencies must strive to improve the varying skills of writers; deliver well-reasoned, clear, and reader-friendly decisions to the public; and measure organizational performance based upon the quality of decisions. What you do is important!

6. ALJ’s are professional writers Whether an ALJ writes well or poorly, the decision will be published and become a public record. Opinions may be dissected for years to come. Authors are judged by the contents of their work. Is it skillful, logical, conclusive? ALJ’s usually preside over a highly specialized area and possess a unique expertise. Don’t assume that everyone knows and understands what you know about your area of expertise.

8. Decision Making Don’t let the perfect be the enemy of the good. Voltaire

9. Obey the Rule of Law

12. Code of Judicial Conduct The first paragraph of the preamble to the Code of Judicial Conduct states that “judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.” Judicial accountability to society must include the responsibility to help those untrained in the law to better understand the basic concepts and principles involved in judicial decisions

13. Judgments are not delivered in isolation. Various audiences, ranging from the parties and appellate courts to the wider community may examine AND criticize your decisions for years to come. Mean what you say! "You should say what you mean," the March Hare went on. "I do, "Alice hastily replied, "at least, I mean what I say - that's the same thing you know. " "Not the same thing a bit!" said the Hatter... Alice in Wonderland

14. PRIMARY CHALLENGE Every hearing officer must comprehend the essential law governing administrative decisions and stay abreast of any changes. Knowing the law is not enough. A hearing officer must be able to organize the issues, find facts and apply the law to the facts in order to resolve the issues and, it must be done in language ordinary people can understand.

16. Orders Must Contain Reasons "The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues,’ disclosing how any issue of law or fact was resolved.” From "Decision-Writing“ by the Hon. Justice Garry Downes, Australia, March,2007

17. Good Decision-writing Good decision-writing will result in a simple, concise, though well reasoned and easily comprehensible, explanation of why the decision was made. Every conclusion will answer the question “why.” A "because" clause answering the question "why" must be included. Write with Conciseness and Clarity Make the Opinion Readable Justice is not there unless there is also understanding

18. Legalese Using legalese can make your writing appear archaic, too formal, or stilted. Examples of legalese include the following words: aforementioned, aforesaid, hereto, heretofore, herewith, said (when used as an adjective), thereby, therein, thereof, thereto, therefor (as opposed to the conjunction, therefore), therewith, whereby, wherefore, wherein, and whereto. Often, legalese can be omitted without changing a sentence’s meaning or creating ambiguity. In other cases, simpler words can be substituted.

19. Wordiness: Flee Verbosity “The more a man’s tongue flees verbosity, the more his intellect is illumined so as to be able to discern deep thoughts; for the rational intellect is befuddled by verbosity.” St. Isaac of Syria Wordiness is taking more words than necessary to make your point. It may take the form of redundant expressions or phrases. Longer expressions may be appropriate at times as a matter of style or to avoid ambiguity as long as sentences and paragraphs are not cluttered with words, phrases, and expressions that needlessly distract the reader.

20. Examples General Examples of Wordiness absolutely essentialaccording toall ofare connected withas a resultas long asat all timesat this timeclose proximity Better Phrases or Words essentialperall (or each)relate tothusifalwaysnow (or currently)proximity

21. Examples Continued Words with Multiple Syllables althoughaltogetheranticipatebecausecommenceconsequentlyintooftentimesthereforeuponutilizewheneverwithin Simpler Words thoughtogetherexpect sincebegin (or start)thusinoftenthusonusewhenin

22. Redundancy Free and clear mean the same thing. A popular legal redundancy is that a debt is "due, owing and unpaid." Unpaid does not necessarily mean that a debt is due. "Big Giant" The word "Giant" signifies something huge, big or large; therefore the word "Big" is not necessary.. "Raise up" or "Lower down" the anchor. Raise can only go in one direction, "Up" as lower can go in only one direction, "down".

23. Be succinct Why waste words? Wouldn't it be nice if more judges could cut to the chase like Judge J.H. Gillis of the Michigan Court of Appeals? “The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. (1969), 17 Mich. App. 259, 169 N.W.2d 326. He didn't. We couldn't.”Affirmed. Costs to appellee. Denny v. Radar Industries, Inc., 184 N.W.2d 289 (Mich. App. 1970).

24. Be consistent: Decisions, opinions, orders—what’s the difference? Do you write a “Final Order,” issue a “Judgment” or sign a “Decree?” Use the right terminology and be consistent. Consistency doesn’t mean being ironclad and never changing or making an exception Your main goal is to always hit the target!

25. VAGUENESS JUDICIAL AMBIGUITY MAY ACTUALLY PROMOTE NONCOMPLIANCE AND INCREASE A COURTS WORKLOAD BECAUSE THE PARTIES HAVE TO COME BACK.

26. Hemmingway Style Choose the simplest word that adequately expresses the idea. Example, judges should use "later" instead of "subsequently," "before" instead of "prior to," "stop" instead of "cease," "explain" instead of "elucidate," "place" instead of "locality," and "begin" instead of "initiate." Justice Marshall F. McComb suggested: In selecting a word, think: First, do I know what it means? Second, how many of my readers know its meaning? Third, is there another word which expresses the same concept; if so, would more readers know its meaning? If you decide that a substituted word would be more readily understood by a larger audience use it

27. Decisions Mirror Court Action Just as with your appearance in the court room, your decisions must show no bias. You must be fair and, you must appear to be fair

28. The Elements of a Judicial Opinion Every opinion contains four elements: Structure Content Format Organization

29. Structure The text of a decision can be set forth in several ways: chronological sequence, comparison/contrast, description, problem/solution, and cause and effect.

31. third

32. today

33. until

34. when

35. initially

36. later

37. meanwhile

38. next

39. not long after

40. now

41. on (date)

42. preceding

43. second

45. instead of

46. in common

47. on the other hand

48. otherwise

49. similar to

50. similarly

51. still

52. yetalthough as well as as opposed to both but compared with different from either...or even though

53. Generalization/Principle: Signal Words additionally always because of clearly conclusively first for instance for example furthermore generally however if...then in fact it could be argued that moreover most convincing never not only… but also often second therefore third truly typically

54. Process/Cause: Signal Words accordingly as a result of because begins with consequently effects of finally first for this reason how to how if...then in order to is caused by leads/led to may be due to next so that steps involved therefore thus when...then Credit: MU College of Ed, eMints Nat. Center

55. Avoid common grammatical errors EXAMPLE: affect and effect: "Affect" is a verb meaning "to influence": "The testimony was intended to affect the jury." "Affect" can also mean "to pretend": "She affected surprise." "Effect" is usually used as a noun meaning "consequences": "She noted three major effects of the treatment." Sometimes "effect" may be used as a verb meaning "to bring about or accomplish": "The mediator effected an agreement

56. ISSUES WITH CREATIVITY Judicial opinions contain imagery from many sources. Throughout American legal history, judges have used metaphors and humor and have borrowed from literary works in crafting their opinions.

57. Idioms Idioms are phrases that don't mean what they literally say, but have meaning to native speakers. For example, the phrase under the weather is known by most native English speakers to mean that someone isn't feeling quite well, but if you weren't a native English speaker, you would probably have no idea what the phrase means by just looking at the words.

60. Use of Metaphors In one Oklahoma case, the court described the defendant as "lowdown, degenerate and filthy.“ (Was this metaphor or literal description of a criminal?) Williams v. State, 226 P.2d. 989, 997 (Okla. Crim. App. 1951). See Martha Grace Duncan, Slime and Darkness: The Metaphor of Filth in Criminal Justice, 68 TUL. L. REV. 725 (1994) (describing frequent use of slime and filth metaphors in judicial opinions).

62. Use of Metaphors Don’t leave the parties out in left field. The use of metaphors, like a sports metaphor is a common practice used by judges. Caution must be used because metaphors can create a linguistically unlevel playing field for those who are unfamiliar with their use. People of different sexes, cultures, or age groups may have a hard time relating.

63. Judicial Humor: Views Differ Judicial humor is neither judicial nor humorous. A lawsuit is a serious matter to those concerned in it. For a judge to take advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he's down. (542 P.2d 676 (Kan. 1975). "Imagery and humor can reshape the dispute into the story that it originally was, help bring the dispute back 'down to earth,' and dispel some of the notions held by those affected by the legal system.“ Jordan, Imagery, Humor, and the Judicial Opinion, 41 U. MIAMI L. REV. 693 (1987);

64. Humor in Decisions "[H]umor in the format of doggerel verse . . . can undermine judicial opinions as sources of law." Susan K. Rushing, Student Essay, Is Judicial Humor Judicious?, 1 SCRIBES J. LEGAL WRITING 125 (1990). "The bench is not an appropriate place for unseemly levity. The litigant has vital interests at stake. His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig." W. PROSSER, THE JUDICIAL HUMORIST vii (1952).

65. Poetry Some farmers from Gaines had a plan.It amounted to quite a big scam.But the payments for cottonbegan to smell rotten.Twas a mugging of poor Uncle Sam. Judge Irving Goldberg, U.S. v. Batson, 782 F.2d at 1309 (1986)

66. Study What Other Judges Write Read Chief Justice Roberts decision in S. Carolina v. N. Carolina, 558 U. S. ____ (2010) decided in Jan. of 2010. Justice Roberts near-conversational writing style has been called fine, crisp, clear, plainspoken and effective. Note how Roberts drives home the point with the reiteration of the word 'never,' hammered in with a potent, one-word sentence. At another point, Roberts runs out an explication and then almost casually adds: "And all this for what?"

67. WRITING EFFECTIVE CONCLUSIONS When writing a decision, the conclusion is the opportunity to make clear what has been decided and explicitly and unequivocally state the consequences of the decision. Be persuasive, explicit and unequivocal. Remember for whom you are writing. (Your audience).

68. PRACTICAL CONSIDERATIONS THE NUTS & BOLTS

69. ENHANCE READABILITY THROUGH SHORTER SENTENCES One suggestion: Footnoting citations allows writers to vary their sentence length and to shorten the average sentence length. No one wants a three-word sentence sandwiched between citations. It gets lost. NOTE: Lay persons may not be familiar with phrases such as ibid, infra and supra. Write foot notes in plain English also.

70. List of Abbreviations Define any abbreviations or acronyms you will use throughout your opinion. Remember again who your audience is. To a pro se party, all of the lingo will be unknown to them and they will not have anyone to explain all the jargon. If you would prefer to just define each term when it is used initially that is acceptable too. Having the list at the beginning just makes for quick reference when reading the opinion.

72. INNOVATE Ask the parties to submit their list of witnesses and exhibits as well as their post-hearing briefs via email or diskette to you so that you can cut and paste, then edit, where possible. Keep in mind that you cannot merely adopt one party's brief as your own, however, no matter how much you may agree with it.

73. Procedural Safeguards Make a list of procedural safeguards unique to your jurisdiction and the rules of your court. Check them off as you review the case and write your decision. Examples: Is a protective order clause needed to prevent the publication of a minor’s name? Were all deadlines met? What about notice of appeal rights?

74. Re-examine what you write Always ask yourself: Does this Order provide guidance? Is it clear? Does it effectively communicate both the decision and the process leading to the decision? Do you have to explain it for it to be understood?

75. JUDICIAL REVIEW AND REASONS The chance of a decision being overturned on judicial review is less likely if the decision is supported by a clear and logical application of law to facts, effectively communicated to the parties.

76. Author unknown. Attempt to credit unsuccessful

77. SUMMARY Organize Keep your audience in mind Make findings of face and conclusions of law clear and concise It’s usually better to group sentences together and number them rather than to state and number each fact or conclusion as a separate sentence. Recite only those facts and legal authorities that are relevant to the issues and necessary to your ultimate decision. Try not to be redundant, repetitive, or duplicative unless you need to emphasize a key point. Have someone else proof your spelling and grammar, if possible.

78. May it please the court It’s YOUR decision

79. QUESTIONS

80. REFERENCES

81. Drafting Judicial Opinions Ruggero J. Aldisert, Opinion Writing (1990). Crafting judicial opinions (trial and appellate) American Bar Association, Judicial Opinion Writing Manual (1991). Crafting opinions, the format of an appellate opinion, citation format and writing style Joyce J. George, Judicial Opinion Writing Handbook (4th ed. 2000). Writing judicial opinions, trial and appellate, ethics, process, writing technique, word usage, the role of the law clerk, criticism of judges and their opinions Norman J. Singer, Statutes and Statutory Construction (6th ed. 2000). Excellent resource for issues of statutory construction Credit William Taylor Muse Law Library, University of Richmond School of Law Research Guide

82. Grammar Veda R. Charrow et al., Clear & Effective Legal Writing (3d ed. 2001). Grammar review and exercises located in appendix Bryan A. Garner, The Elements of Legal Style (2d ed. 2002). Patterned after Strunk and White’s Elements of Style, punctuation, word choice, grammar syntax and matters of form Bryan A. Garner, The Redbook: A Manual on Legal Style (2002). Commas, semicolons, other punctuation marks, capitalization, type face, citation format, memos, motions, briefs Laurel Currie Oates et al., The Legal Writing Handbook: Analysis, Research and Writing (3d ed. 2002). Detailed resource on writing memoranda and briefs with chapters on grammar William Strunk, Jr. & E. B. White, The Elements of Style (1979). Old standby; excellent resources on grammar and usage

83. Books Ruggero J. Aldisert, Opinion Writing (West Publg. Co. 1990). Elizabeth Fajans, Mary R. Falk & Helene S. Shapo, Writing for Law Practice 337 (Found. Press 2004). Bryan A. Garner, The Redbook: A Manual of Legal Style 435 (2d ed., Thomson West 2006). Joyce J. George, Judicial Opinion Writing Handbook (4th ed., W.S. Hein & Co. 2000).

84. HOW TO WRITE GOOD LEGAL STUFFEugene Volokh, UCLA & J. Alexander Tanford, Indiana Univ – Bloomington 2001 This is an excellent guide to good legal writing. According to the authors, good writing consists of avoiding common clunkers and using simpler replacements. The replacements aren't always perfect synonyms but 90% of the time they're better than the original. Read their 10 Signs of Bad Legal Writing and Dictionary of Legalize http://www.law.indiana.edu/instruction/tanford/web/reference/ow2write.html

85. References: Punctuation, Usage, and Styles

86. Free Online Resources Judicial Writing Manual, Federal Judicial Center (1991, 56 pages) http://www.fjc.gov/public/pdf.nsf/lookup/judiwrit.pdf/$file/judiwrit.pdf Other information is also available from the Federal Judicial Center website: http://www.fjc.gov/public/home.nsf

87. Free Online Continued Ethical Judicial Opinion Writing by Gerald Lebovits, New York Law School http://works.bepress.com/gerald_lebovits/118/ NEW JERSEY MANUAL ON STYLE FOR JUDICIAL OPINIONS, REVISED AND APPROVED BY THE SUPREME COURT OF NEW JERSEY, 2004 http://www.judiciary.state.nj.us/appdiv/manualonstyle.pdf