Judicial Writing Manual, Second Edition

IV. Writing the Opinion

A judicial opinion should identify the issues presented, set out the
relevant facts, and apply the governing law to produce a clear, well-
reasoned decision of the issues that must be resolved. The guidelines
that follow are intended to help judges write opinions that will meet
these requirements.

Structure
A full-dress opinion should contain five elements:
1. an introductory statement of the nature, procedural posture,
and result of the case;
2. a statement of the issues to be decided;
3. a statement of the material facts;
4. a discussion of the governing legal principles and resolution of
the issues; and
5. the disposition and necessary instructions.
The organization and style of opinions will, of course, vary from case
to case, but this is the framework on which to build.
Clear and logical organization of the opinion will help the reader
understand it. The use of headings and subheadings or Roman nu-
merals, or other means of disclosing the organization to the reader, is
always helpful, particularly when the opinion is long and the subject
matter complex. Headings, subheadings, and subdivisions not only
provide road signs for the reader, they also help the writer organize
his or her thoughts and test the logic of the opinion. They also enable
a judge who wishes not to join some part of the opinion to identify it.
And they assist in the indexing and classification of opinions and their
retrieval by researchers.
The following sections discuss each of the elements of an opinion.

Introduction
The purpose of the Introduction is to orient the reader to the case. It
should state briefly what the case is about, the legal subject matter, and
the result. It may also cover some or all of the following:
1. The parties: The parties should be identified, if not in the In-
troduction, then early in the opinion, preferably by name, and

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names should be used consistently throughout. (The use of le-

gal descriptions, such as “appellant” and “appellee,” tends to be
confusing, especially in multi-party cases.)
2. The procedural and jurisdictional status: The basis for jurisdic-
tion, relevant prior proceedings, and how the case got before
the court should be outlined.
3. The issue: The issue or issues to be decided should be identi-
fied, unless they are so complex that they are better treated in
a separate section.
Summarizing the holding at the outset can save time for readers,
particularly researchers who will be able to determine immediately
whether to read the rest of the opinion. Providing a terse summary of
the holding at the start of the opinion also helps the judge state it pre-
cisely and succinctly. The final version of the Introduction may be best
written after the opinion is completed, when the judge has refined the
issues, the conclusions, and the supporting analysis.
Some judges prefer to place the holding at the end, believing that
an opinion will be more persuasive if the reader must read through it
before learning the outcome.

Statement of issues
The statement of issues is the cornerstone of the opinion; how the
issues are formulated determines which facts are material and what
legal principles govern. Judges should not be bound by the attorneys’
analyses; they should state the issues as they see them, even if this dif-
fers from how the lawyers state them. That an issue has been raised by
the parties does not mean that it must be addressed in the opinion if
it is not material to the outcome of the case.
The statement of issues should be brief. Although an issue or two
can often be sufficiently identified in the Introduction, the number or
complexity of the issues in some cases may require separate sections.
The statement of issues may come before or after the statement of
facts. Stating the issues first will make the fact statement more mean-
ingful to the reader and help focus on material facts. In some cases,
however, it may be difficult to state the issues clearly unless the reader
is familiar with the material facts. This may be true, for example, when
the issue is procedural and requires an explanation of the context.

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The statement of issues should not be confused with recitals of the

parties’ contentions. Lengthy statements of the parties’ contentions,
occasionally found in opinions, are not a substitute for analysis and
reasoning, and they should be avoided.

Statement of facts
In a single-issue case, the facts can be set forth in one statement early
in the opinion. But when a case raises a series of issues, some facts
may not be relevant to all of the issues. This situation confronts the
judge with the difficult task of presenting enough facts at the outset to
make the opinion understandable without later repeating facts when
discussing particular issues that require further elaboration. In such a
case, the initial statement of facts can be limited to necessary histori-
cal background, and the specific decisional facts can be incorporated
in the analysis of the issues they concern.
Only the facts that are necessary to explain the decision should be
included, but what is necessary to explain the decision is not always
obvious and may also vary depending on the audience. An unpub-
lished memorandum opinion intended only for the parties does not
require background or historical facts; the opinion need only identify
the facts that support the conclusion. However, background facts may
sometimes be helpful in giving the context of a decision and explain-
ing its rationale. And opinions that are likely to be read by audiences
other than the parties may require lengthier fact statements to pro-
vide the context for the decision and delineate its scope.
Excessive factual detail can be distracting. Dates, for example,
tend to confuse readers and should not be included unless they are
material to the decision or helpful to its understanding. Although
brevity and simplicity are always desirable, they are secondary to the
need for a full and fair fact statement. Facts significant to the losing
side should not be omitted.
Some judges like to include facts that, although not material to
the decision, add color. “We’ve got to have some fun,” one judge said.
Some feel that this is a mark of the author’s flair and improves read-
ability. There is the obvious danger, however, that the reader may think
the decision is based on these facts even though they are not material.
Moreover, colorful writing—though appealing to the author—may be

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seen by the parties as trivializing the case. It must therefore be used

with caution.
Above all, the statement of facts must be accurate. The judge
should not assume that the facts recited in the parties’ briefs are stated
correctly. There is no substitute for checking fact references against
the record. No matter how good the lawyers are, the judge may find
that the way facts are stated in the record differs from the way they are
stated in the briefs. If time does not permit the judge to read the entire
record, a law clerk should be assigned that task, with instructions to
mark all the relevant parts for the judge to review.

Discussion of legal principles

The discussion of legal principles is the heart of the opinion. It must
demonstrate that the court’s conclusion is based on reason and logic.
It should convince the reader of the correctness of the decision by the
power of its reasoning, not by advocacy or argument. The judge must
deal with arguably contrary authorities and opposing arguments, and
must confront the issues squarely and deal with them forthrightly. Al-
though the opinion need not address every case and contention, the
discussion of legal principles must be sufficient to demonstrate to the
losing party that the court has fully considered the essentials of its
position.
The following guidelines apply to the discussion of legal principles.
Standard of review
The opinion should specify the controlling standard of review at the
outset of the discussion of legal principles. Unless the reader is told
whether review is under the de novo, the clearly erroneous, or the
abuse of discretion standard, the meaning of the decision may be ob-
scure. Moreover, specifying the standard of review helps the judge
discipline the analysis.
Appendix C provides examples of clearly stated standards of
review.
Order of discussion of issues
Just as the judge should not be wedded to counsel’s formulation of the
issues, he or she should not feel compelled to address the issues in the
order in which counsel presented them. The order in which to address
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the issues will be dictated by the organization of the opinion. Gener-

ally, dispositive issues should be discussed first. The order in which
those issues are taken up will be governed by the opinion’s reasoning.
If non-dispositive issues are addressed at all—for educational reasons
or to guide further proceedings—the judge should discuss them near
the end of the opinion.
Issues to address
As a general proposition, an opinion should address only the issues
that need to be resolved to decide the case. If the court determines
that an issue not raised by the parties is dispositive and should be
addressed—even though the parties have not properly preserved and
presented it—the court should notify counsel and provide them with
the opportunity to brief it.
Issues not necessary to the decision but seriously raised by the
losing party should be discussed only to the extent necessary to show
that they have been considered. The line between what is necessary to
the decision and what is not, however, is not always clear. Occasion-
ally, a full explanation of the rationale for a decision may be enhanced
by discussion of matters not strictly a part of the holding. Moreover,
a judge may find it efficient to address issues not necessary to the de-
cision if the judge can thereby provide useful guidance for the lower
court on remand. However, judges must be careful not to decide is-
sues that are not before them and to avoid advisory opinions and un-
necessary expressions of views that may tie the court’s hands in a fu-
ture case.
Alternative holdings
Stating separate and independent grounds for a decision adds strength
to the decision but diminishes its value as a precedent. Professor Ber-
nard Witkin argues that judges should avoid such rulings.8 Statements
such as “even if the facts were otherwise” or “assuming arguendo that
we had not concluded thus and so” undermine the authority of the
holding. Witkin suggests either limiting the “even if ” approach to
opinions where doing so is necessary to achieve a majority decision or

8. See Bernard E. Witkin, Manual on Appellate Court Opinions § 81 (1977).

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avoiding it completely by phrasing the opinion in such a manner that

the alternative ground is disposed of first and the substantial ground
of the opinion is stated last. But in opinions that are likely to have little
impact as precedent, there is no reason why the court should not base
its decision on alternative grounds, without giving one precedence
over the other.
Case citations
Most points of law are adequately supported by citation of the latest
decision on point in the court’s circuit or the watershed case, if there
is one. String citations and dissertations on the history of the legal
principle add nothing when the matter is settled in the circuit. Judges
should resist the temptation of trying to impress people with their (or
their law clerks’) erudition.
If there is no authority in the circuit, it is appropriate to cite au-
thority on point from other circuits. If an opinion breaks new ground,
however, the judge should marshal existing authority and analyze the
evolution of the law sufficiently to support the new rule.
Secondary sources
Because law review articles, treatises and texts, and non-legal sources
are not primary authorities, they should be cited sparingly and only
to serve a purpose. That purpose may be to refer to a sound analysis
that supports the reasoning of the opinion. Some authors are so well
respected in their fields that, in the absence of a case on point, their
word is persuasive. Occasionally, public documents or other published
works will shed light on relevant historical or policy considerations.
Quotations
If something important to the opinion has been said well in an earlier
case, quoting relevant language from the case can be more persuasive
and informative than merely citing or paraphrasing it. The impact of
a quote, however, is inversely proportional to its length. Judges should
quote briefly, and only when the language makes an important point.
While quotes should be short, they must also be fair. They must
be used in context and accurately reflect the tenor of their source.

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Avoiding advocacy
Justifying a decision will sometimes require explaining why contrary
arguments were rejected. In addressing the main contentions of the
losing side, however, an opinion should not become an argument be-
tween the judge and the lawyers, other judges on the court, or the
court below. If the losing side has raised substantial contentions, the
opinion should explain why they were rejected. But the opinion need
not refute the losing party’s arguments point by point or adopt a con-
tentious or adversarial tone.
An opinion can—and properly should—carry conviction with-
out becoming a tract. Judges should put aside emotion and personal
feelings, and avoid using adjectives and adverbs unless they convey
information material to the decision.
Treatment of the court below
Appellate opinions can and should correct trial court errors and pro-
vide guidance on remand, but they need not attack a trial court’s wis-
dom or judgment, or even its attitude in order to reverse its decision.
Moreover, an appellate opinion should avoid unnecessary criticism of
the trial court, such as for failing to consider authority or resting on
improper motives.

Disposition and instructions

Disposition of a case—and the mandate to the lower court or agency,
when that is a part of the disposition—is the most important part of
the concluding paragraph. Appellate courts should not speak in rid-
dles. Simply to remand a case “for further proceedings consistent with
the opinion” may leave the court below at sea. Opinions must spell out
clearly what the lower courts or agencies are expected to do, without
trespassing on what remains entrusted to their discretion. Thus, even
if an abuse of discretion is found, the appellate court’s decision is on
the law, and the lower court or agency on remand retains the author-
ity to exercise its discretion properly.
Appendix D contains examples of dispositions that provide clear
instructions to the lower court or agency.
Summary disposition may be appropriate in cases in which only
the parties and their lawyers are interested in the result, the facts

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are not complex, and the precedents are clear. It may take the form
of a one-sentence order or a brief memorandum (see Appendix B).
The court should state its reason for making a summary disposition.
When a summary disposition is pursuant to circuit or local rule, that
rule should be cited.

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