法官如何思考没拿到书，贴一篇相关的：《我怎么写判决书》

Scribes Journal of Legal Writing

1993

*45 "HOW I WRITE" ESSAYS

Richard A. Posner [FNa1]

Copyright ?1993 by Scribes; Richard A. Posner

The anterior question is what I write because different genres require

different approaches. A private letter is not a judicial opinion a book review in

the New Republic is not an article in an economics journal an article on

jurisprudence is not a book on AIDS a book based on previously published essays

is not a book written from the ground up an edited book is not an authored book

an authored book is not a coauthored book a majority opinion is not a dissenting

opinion and an en banc opinion is not an unpublished order or an internal

judicial memorandum. My writing covers all these genres. I will discuss just two:

the majority judicial opinion and the authored book (whether or not written from

the ground up -- not an important distinction at least in my work for reasons

that I'll explain).

Here is how I write a judicial opinion. In my court panels normally of three

judges ordinarily hear six cases in a day's sitting and at the end of the day

confer on the cases and take a tentative vote after which the presiding judge --

the active judge with the most seniority -- assigns the writing of the majority

opinion (or unpublished order if the case is not considered significant enough

for a published opinion) in each case. Almost always each judge on the panel is

assigned two of the cases. That evening (or sometimes *46 the following day or

evening) -- while the oral argument and the judges' discussion are fresh in my

mind -- I write a rough draft of the opinions assigned to me. I have before me as

I type my opinion (on a computer of course) always the briefs and printed

appendixes and sometimes in addition key statutory material or a few key opinions.

After 40 years of typing I am a proficient typist so the production of an

opinion is not slowed by the time it takes to type what I want to say; and after

12 years of judging and with more than 1100 opinions under my belt I can usually

plan and write an opinion draft in an hour if it's a simple case and in two to

four hours if it's a complex case. These are rough drafts; refinements are for

later.

As I write I identify and mark on the draft the areas where further research

is necessary. After printing out the drafts of my two assigned opinions I give

them to my law clerks to complete the research to criticize the drafts to check

the facts and to suggest corrections and improvements of every sort -- style

tone logic lucidity whatever. The law clerks' research is embodied in a

memorandum backed up by a library cart or two or three containing the cases and

other materials referred to in the memo. (I do not cite anything in an opinion

unless I have read the pertinent portion of the cited item.) I then do a redraft

and give it to the clerks for further research criticism etc. Redrafting may

continue for several rounds before I have a draft that I feel reasonably

comfortable about circulating to the other members of the panel.

I try to write clearly concisely candidly concretely and freshly. That is

I try to say what I mean avoid the unnecessary details that crowd judicial

opinions avoid legal jargon and flights of rhetoric minimize citations to and

quotations from previous opinions avoid euphemisms and walk without the crutches

that judges use to get over gaps in ***ysis (crutches such as the canons of

statutory construction gobbets of legislative history and strained ***ogies to

earlier decisions). I do not employ the mealy-mouthed and hypocritical vocabulary

of political correctness I do not use section breaks or headings to subdivide my

opinion *47 (and hence am sometimes accused by lawyers who are not students of

Joyce or Faulkner of writing in a stream-of-consciousness style) and I do not

use footnotes. I do a lot of rewriting but I am not sure polishing is the right

word for I try to make my opinions sound conversational rather than declamatory.

I am not above using slang. As Holmes once said a judge doesn't have to be heavy

in order to be weighty. I know that only a few of the readers of my opinions are

not lawyers but the exercise of trying to write judicial opinions in a way that

makes them accessible to intelligent lay persons contributes to keeping the law in

tune with human and social needs and understandings and avoiding the legal

professional's natural tendency to mandarin obscurity and preciosity.

Because my opinions are nonstandard in this age when the vast bulk of judicial

opinions are written by law clerks they draw a somewhat higher fraction of

concurring and dissenting opinions than is usual in my court. Because I give the

reasons that actually moved me to vote as I did in the case or that persuade me

that the decision that I am trying to justify is a sound one rather than

regurgitating the standard pablum of judicial rationalization my opinions are

sometimes said to contain too many dicta and to stray too far from the lawyers'

framing of the issues. I prefer a strong and honest opinion to a unanimous opinion

or an opinion that makes a judge popular with the bar. And I am not sure how many

of the critics who say my opinions contain too many "dicta" even have a clear idea

of what the word means.

The process that I have described of writing a rough draft right off the bat as

it were and gradually expanding and refining it is almost the opposite of how most

judicial-opinion writers (who are mainly today as I have said law clerks) work.

First they complete their research; then they write a draft that since it

incorporates the results of the complete research is close to a final draft. The

problem with that approach is that it fosters procrastination. As one's research

mounts up the difficulty of organizing a draft that will incorporate it mounts up

too. It is far easier in my experience to write a rough draft before one has done

extensive research and then build on it to a final draft. The writing of the rough

draft is *48 not that formidable a task and once it is done one has a sense of

accomplishment and a solid base for expansion.

I follow a rather similar approach in writing books. I like to write a complete

draft however rough early in my research. I like it even better if I can

incorporate in that draft some articles or parts of articles or even book

reviews that I have already written because that makes the preparation of the

first draft of the book that much less formidable. I am not one of those writers

who believe that one's published work is sacrosanct and should not be revised. In

fact I regard all my work as work in progress and always subject to improvement

correction refinement. Anyone who cares to compare chapters in my books with

articles on which those chapters were based will observe extensive revisions.

Once I have the complete draft of a book I proceed much as in the case of my

judicial opinions except with academic research assistants (usually but not

always law students) substituted for law clerks. The process of drafting will

identify for me the gaps often vast in my research. I ask my research assistants

to try to fill them in for me. They bring me books and articles to read. (As with

opinions so with books I do not cite anything that I have not read or if it is

a general citation rather than something on which my argument relies at least

skimmed.) Over a period of months I revise my draft to incorporate the results of

this research and I obtain criticisms of portions of the draft from academic

friends and acquaintances. Often I will give a chapter or several chapters as a

lecture or workshop paper to obtain criticisms from participants. I find criticism

immensely stimulating. Word-processing has made it possible to revise a book

manuscript several even many times before it is submitted to the publisher and

I have taken enthusiastic advantage of this new capability.

Books have a different function and a different audience from judicial

opinions. I do not flinch from using footnotes in books although I try to keep

them to a minimum and in particular to avoid long textual footnotes. I insist that

the publisher place the footnotes at the bottom of the pages of my books rather

than as is increasingly common at the back of the book. It is most *49

inconsiderate to force a reader to flip back and forth in order to associate

footnote with text. Almost all my books are intended for an interdisciplinary

audience so I am particularly careful to avoid jargon and to write simply and

clearly. For certain types of writing a high level of technicality is unavoidable;

but in general it is the second-rate intellect that cultivates a pretentious

vocabulary and a solemn and portentous style. I want my books to be readable and

that is why I insist as I have said that the footnotes appear at the bottom of the

pages. I try to write plainly even bluntly. But except for the occasional

textbook or casebook I write academic books published by academic presses for an

academic and professional audience. I do not aspire to write for a truly general

audience.

[FNa1]. Chief Judge United States Court of Appeals for the Seventh Circuit since

1993 (Judge since 1981); Senior Lecturer University of Chicago Law School. A.B.

Yale College 1959; LL.B. Harvard Law School 1962. Law Clerk to Justice William

J. Brennan Jr. United States Supreme Court 1962-1963. AssociateProfessor of

Law Stanford Law School 1968-1969; Professor of Law University of Chicago Law

School 1969-1981. Author: Economic Analysis of Law 1973 4th ed. 1992; Law and

Literature: A Misunderstood Relation 1988; The Problems of Jurisprudence 1990;

Cardozo: A Study in Reputation 1990; Sex and Reason 1992.