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JournalJournal

JUNE 2003 | VOL. 75 | NO. 5

N E W Y O R K S T A T E B A R A S S O C I A T I O N

InsideInsideSelf-Evaluative Privilege

Res Ipsa Loquitur StandardsUpdate on Dead Man’s Statute‘SUM’ Decisions Review

BEYOND WORDS:

THE ROLE OF GRAPHICS

BEYOND WORDS:

THE ROLE OF GRAPHICS

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64   Journal  | June 2003

True  per curiam opinions are moreauthoritative than signed opinionswhen they contain no reservations orexceptions. The authority extends onlyto the result, not to the reasoning. Percuriam opinions are less authoritativethan signed opinions when the courtuses them to decide mundane ques-tions. Per curiam opinions are the mostauthoritative opinions of all when thecourt wants to make a politically im-portant decision come from a unani-

mous court, not from an individual judge appointed by a particular ap-pointing authority. Some readersmight have heard about a few recentexamples of this form of  per curiamopinion writing, such as all the federaland state opinions in Bush v. Gore.3

The Appellate Term, First Depart-ment, which for historical reasons de-nominates all its opinions  per curiam,does not render true  per curiam opin-

ions. Appellate Term, First Depart-ment, opinions are signed only to theextent that the justices concur or dis-sent separately. These opinions are re-ally memorandum opinions – andthat’s what the Appellate Term, Sec-ond Department correctly calls them. Judgments of the Appellate Term, FirstDepartment, are set out in the concur-rences, but “[a] true per curiam opinionhas neither a concurrence nor a dis-sent” that sets out a judgment.4 A true

 per curiam opinion itself contains the judgment, not the signed concurrencesand dissents attached to it.

Memorandum Opinions. True“memorandum opinions” are un-signed, except by the clerk of the court.In New York, memorandum opinionsare unsigned in the First, Second, andFourth Departments. Because the jus-tices in the Third Department signtheir memorandum opinions, the

Third Department does not render true

THE  LEGALWRITER

Legal writers must know morethan writing. They must knowhow to write in a legal context. To

do that they must know how to re-search. Researching is less about find-ing authority than about analyzing au-thority. Analyzing authority requiresunderstanding method and applyingtechnique – the science and craftlawyers use to help society and theirclients.

As the great Professor Llewellyn

has taught, “Technique without idealsis a menace. But ideals without tech-nique are a mess.”1 This column,which continues next month, explainssome essentials of method and tech-nique. Other essentials, like parsingprecedent and interpreting statutes,are reserved for future columns.

Opinions. A “judicial opinion” is acourt’s reasoned explanation of its de-cision: “An opinion is simply an expla-

nation of reasons for the judgment.”2

An opinion may be oral or written. Anattorney gives a “legal opinion” to aclient or on a client’s behalf.

Per Curiam Opinions. They are un-signed and decided by “the court.” Inthe federal appellate courts,  per curiamopinions are reserved for casesdeemed routine and squarely con-trolled by precedent or for cases inwhich the court wants to control the

result without writing to explain why.In most appellate courts in New York,opinions are rendered  per curiam  be-cause a majority of the judges agreewith the result but not with the reason-ing or because, for one reason or an-other, the judges or justices do notwish to be personally identified withthe court’s opinion. Thus, opinions indisciplinary appeals and judicial-misconduct appeals are decided  per

curiam.

memorandum opinions. Memoran-dum opinions are brief and conclusoryon the law, the facts, and the proce-dural history. Memorandum opinions,typically written when the court be-lieves that the matter is not of first im-pression, are directed to the litigantsand not to the public at large. They al-ways have less weight than signed, orfull, opinions.

At least one commentator opinedthat “a memorandum opinion shouldnot be used when disposing of a case by reversal or remand . . . .”5 That isnot the policy of the New York Stateappellate courts, which affirm, reverse,modify, and remand in memorandum

opinions when they believe that thecase does not warrant a full, signedopinion.

En Banc Opinions. A case decideden banc – pronounced in bank by many– is decided by an entire court of inter-mediate appellate jurisdiction, not just by one panel. This procedure is used inthe federal circuits but not in NewYork State courts. Unless an en bancopinion has numerous concurrences ordissents, it’s the most persuasive opin-

ion in the federal system below aSupreme Court opinion.

Concurrences, Dissents. Unanim-ity enhances stability in the law, pro-motes collegiality, reduces the numberof motions for reargument, and pro-motes public confidence. But “separateopinions . . . compelled by an abiding belief in an intellectual, factual, or ana-lytical difference [signify] a healthy ju-diciary.”6 The availability of concur-

Research is less about finding authority than about analyzing authority.

CONTINUED ON PAGE  60

Technique: A Legal MethodTo the Madness

BY GERALD  LEBOVITS

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60   Journal  | June 2003

rences and dissents limits judicial ad-vocacy by judges in the majority, fos-ters judicial accountability, and pro-vides a safety valve for judges to blowoff steam. Nevertheless, judges should

not write concurrences and dissentsunless they have something significantto express beyond personal dissatisfac-tion.7

Concurrences and dissents are writ-ten for the future, when another panelmight adopt the reasoning; for a higherappellate court, which might considerthe concurrence and dissent and evenaffirm or reverse for the reasons statedthere; for the panel’s other judges, whomight ultimately adopt part or all of the concurrence or dissent; or for out-side forces, such as the Legislature, tocorrect perceived mistakes.

A concurrence agrees with the re-sult but for different reasons. Someconcurrences are written to disagreewith the majority’s rationale. Othersare written to assure the losing sidethat all is not lost, to highlight aground the majority did not mentionprominently enough, or, in cautioning

against too broad an interpretation, tonote that the majority did not go as faras its language suggests. Sometimesconcurrences are written to create amajority and avoid a plurality.8 Con-currences are calm. Dissents are oftenagitated.

Dissents object to the result. Most judges dissent reluctantly. Dissentingmeans disagreement, makes no law, re-quires extra work, and possibly means

not being read. Busy practitioners tendto read only majority opinions, not dis-sents. They care about what the law is,not what some judges believe it should be.

Dissents fail when they are overlycollegial: “A sense of urgency and of impending doom is almost a sine quanon of the dissenting voice.”9 Dissent-ing judges need not play hostage to ju-dicial politics. They can exercise theirFirst Amendment rights using what-

ever rhetorical flourishes they wish.

Some of the most famous judicial writ-ings come from dissents, and many fa-mous judicial writers – Justices Black,Brandeis, Douglas, and Holmes, toname a few – were great dissenters.Often, though, spirited dissents lead to judicial jab-trading, which is some-thing to avoid.10

Until it was dropped from the 1972Code revision by an ABA committeeheaded by California Chief JusticeRoger J. Traynor, Canon 19 of the 1924ABA Canons of Judicial Ethics, drafted by Chief Justice William H. Taft, pro-vided that “[e]xcept in case of consci-entious difference of opinion on funda-mental principle, dissenting opinionsshould be discouraged in courts of lastresort.”

Canon 19 was enacted because of sentiments like these:

A dissenting judge is not limited inhis dissent and often is tempted togo beyond the record. He sometimesmay indulge in sarcasm and far-fetched logic, unreasonable con-structions and interpretations . . . .He wants to make his view standout in bold relief, and by undue em-phasis, unreasonable criticism, un-

fair interpretation, and a failure tofollow the record he affords by hisdissent much that makes good read-ing in the press, all to the harm of the court as a whole.11

The 1972 Code revisors droppedCanon 19 because they deemed it un-helpful to make dissenting an ethicalissue.12 One of New York’s solutions toavoid unfair dissents is to allow themajority to respond to dissents. Beforean appellate opinion is issued, draftsare circulated, and the majority mayanswer the dissent. Another solution isto allow a dissenter to “give his rea-sons without entering into a debatewith the majority or even referring tothe majority opinion,”13 except inshorthand to explain the rationale forthe dissent.

Dissenting and concurring opinionsshould offer explanations. Unex-plained dissents or concurrences have

little utility and frustrate litigants and

readers.14 As Professor Cappalli hasobserved, “The dissenter or concurrershould state, even if briefly, her dis-agreement in reasoning and resultfrom the majority.”15

The majority’s decision is thecourt’s decision. Concurring and dis-

senting judges do not speak for thecourt. Thus, one may never write thata concurring or dissenting judge“found,” “held,” or “decided.” A con-currence is dictum. A dissent is argu-ment.

Special rules apply to dissents in theAppellate Division. The Court of Ap-peals takes leave as of right if two Ap-pellate Division justices dissent on aquestion of law.16

Majority Opinions. A “majorityopinion” is one in which more thanhalf the court agrees with the resultand the reasoning.

The desire for unanimity, or evenfor a majority, causes institutionalpressures that greatly affect appellateopinion writing. As Judge Wald ex-plained, “Opinion writing among judges of widely disparate views andtemperaments is, like governing, theart of the possible.”17 To reach consen-

sus, for example, a judge’s “best linesare often left on the cutting roomfloor.”18 Moreover, “the writer maysacrifice full treatment of all non-frivo-lous issues properly before thecourt.”19 In a close case, rationaleschange for votes: “[A] would-be dis-senter may agree to go along with adisfavored result if a disfavored ratio-nale is avoided.”20 Influenced as wellare the precedents on which the judges

rely. According to Judge Wald, pariahsinclude Korematsu v. United States,21 the Japanese-internment case, and Rust v.Sullivan,22 the abortion gag-rule case.23

To achieve consensus, authors of booksand articles are included or excluded because of personalities and views.24

Language, too, is sacrificed, from “lit-erary allusions or humor” to “stylepreferences” to “generalities or expres-sions of high-flown precepts.”25

THE  LEGAL WRITER

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Many appellate opinion writers,such as Chief Justice Charles EvansHughes, sacrificed language for con-sensus: “[I]f in order to secure a votehe was forced to put in some discon-nected or disjointed thoughts or sen-tences, in they went and let the lawschools concern themselves with whatthey meant.”26

Plurality Opinions. A “pluralityopinion” resolves an appeal in which amajority agrees with the result but notwith the reasoning. Only the result of aplurality opinion is binding; the rea-soning in a plurality opinion is dictum.Plurality opinions sometimes lead tounusual results. In National Mutual Ins.Co. of District of Columbia v. TidewaterTransfer Co., Inc.,27 for example, a plu-

rality opinion upheld a statute the ma- jority considered unconstitutional. InOregon v. Mitchell,28  Justice HugoBlack’s opinion became law eventhough eight Justices repudiated hisviews.

The rule for plurality opinions:“When a fragmented Court decides acase and no single rationale explainingthe result enjoys the assent of a major-ity of five Justices, ‘the holding of theCourt may be viewed as that positiontaken by those Members who con-curred in the judgments on the nar-rowest grounds . . . .’”29 A plurality is best labeled “Opinion Announcing theCourt’s Judgment,” not “Opinion of the Court.”

Next Month: Decrees, Orders, Rul-ings, Judgments, Decisions, SeriatimOpinions, Reversals, Advisory Opin-ions, Affirmances, and related varia-tions in the statements made by courts.

1. Karl N. Llewellyn, On What IsWrong With So-Called Legal Education,35 Colum. L. Rev. 651, 662 (1935).

2. Edward A. Hartnett, A Matter of  Judgment, Not a Matter of Opinion, 74N.Y.U. L. Rev. 123, 126 (1999); seealso Thomas W. Merrill, JudicialOpinions as Binding Law and as Expla-nations for Judgments, 15 Cardozo L.Rev. 43, 62 (1993) (stating that judg-ments are primary: “judicial opin-ions are simply explanations for judgments – essays written by

 judges explaining why theyrecorded the judgment they did.”

3. 531 U.S. 98 (2000) (per curiam)(presidential election case); Bush v.Palm Beach County Canvassing Bd.,531 U.S. 70 (2000) (per curiam), va-cating & remanding for reconsideration,Palm Beach County Canvassing Bd. v.

 Harris, 772 So. 2d 1220 (Fla. 2000)(per curiam), upheld on state legisla-tive law on remand, 772 So. 2d 1273(Fla. 2000) (per curiam). For an ex-cellent analysis of per curiam opin-ions, see Laura Krugman Ray, TheRoad to Bush v. Gore: The History of The Supreme Court’s Use of the PerCuriam Opinion, 79 Neb. L. Rev. 517(2000) (footnote in title omitted).

4. Joyce J. George, Judicial OpinionWriting Handbook 234 (4th ed.2000).

5. Ruggero J. Aldisert, Opinion Writing20 (1990).

6. George, supra note 4, at 236.

7. See generally Ruth Bader Ginsburg,

Remarks on Writing Separately, 65Wash. L. Rev. 133 (1990); Alex Simp-son, Jr., Dissenting Opinions, 71 U.Pa. L. Rev. 205, 216 (1923) (“[N]odissent should be filed unless it isreasonably certain that a publicgain, as distinguished from a privateone, will result.”). For two pieces onseparate writing from a New Yorkperspective, see Hugh R. Jones, Cogi-tations on Appellate Decision Making,34 Record of Ass’n of Bar of City of N.Y. 543, 549–58 (1979); Stanley H.Fuld, The Voices of Dissent, 62

Colum. L. Rev. 923 (1962).8. See, e.g., Gertz v. Robert Welch, Inc.,

418 U.S. 323, 353–54 (1974) (Black-mun, J., concurring).

9. Patricia M. Wald, The Rhetoric of Re-sults and the Results of Rhetoric: Judi-cial Writings, 62 U. Chi. L. Rev. 1371,1413 (1995).

10. Maurice Kelman, Getting in the LastWord: The Forensic Style in AppellateOpinions, 33 Wayne L. Rev. 247, 248(1987) (arguing that forensic opinionwriting “disfigures the Court’s opin-

ion and is always to be avoided”).11. Herbert Gregory, Shorter Judicial

Opinions, 34 Va. L. Rev. 362, 366(1948); accord Roscoe Pound, Ca-coethes Dissentiedi: The HeatedDissent, 39 A.B.A. J. 794 (Sept. 1953).

12. E. Wayne Thode, (Reporter’s Notes)Code of Judicial Conduct, 50 (1973).

13. John J. Parker, Improving Appellate Methods, 25 N.Y.U. L. Rev. 1, 13(1950).

14. See, e.g., Ira P. Robbins, Concurring inResult Without Written Opinion: A

Condemnable Practice, 84 Judicature118 (2000).

15. Richard B. Cappalli, Viewpoint, Im- proving Appellate Opinions, 83 Judica-ture 286, 319 (2000).

16. CPLR 5601(a). For a study of current“Great Dissenters” in the AppellateDivision, see Joseph C. LaValley III,The Calculus of Dissent: A Study of 

 Appellate Division, 64 Alb. L. Rev.1405 (2001).

17. Wald, supra, note 9, at 1377.18. Id.

19. Id. at 1378.

20. Id. at 1379.

21. 32 U.S. 214 (1944).

22. 500 U.S. 173 (1991).

23. Wald, supra note 9, at 1379 n. 13.

24. Id. at 1379.

25. Id. at 1379–80.

26. Edwin McElwain, The Business of theSupreme Court as Conducted by Chief 

 Justice Hughes, 63 Harv. L. Rev. 5, 19(1949).

27. 337 U.S. 582 (1949) (plurality).28. 400 U.S. 112 (1970) (plurality).

29.  Marks v. United States, 430 U.S. 188,193 (1977) (quoting Gregg v. Georgia,428 U.S. 153, 169 n.15 (1976) (opin-ion of Stewart, Powell, and Stevens, JJ.)).

GERALD LEBOVITS is a judge of theNew York City Civil Court, HousingPart, in Manhattan. An adjunct pro-fessor at New York Law School, hehas written Advanced Judicial Opinion

Writing, a handbook for New York’strial and appellate courts, from whichthis column is adapted. His e-mailaddress is GLebovits@aol.com.