Judicial Writing Manual:

A Pocket Guide for Judges

Second Edition

Federal Judicial Center

2013

This Federal Judicial Center publication was undertaken in furtherance of 

the Center’s statutory mission to develop educational materials for the judicial branch. While the Center regards the content as responsible and valuable, this publication does not reflect policy or recommendations of the 

Board of the Federal Judicial Center.
first printing
iii

Contents

Editor’s Note v

Foreword to the First Edition vii

Foreword to the Second Edition ix

I. Introduction 1

II. Determining the Scope of the Opinion 3

Three types of decisions 3

Factors to consider 3

Facts and issues 4

Audience 5

Publication 6

III. Preparing to Write the Opinion 9

Developing outlines 9

Using law clerks 10

Reviewing materials 11

IV. Writing the Opinion 13

Structure 13

Introduction 13

Statement of issues 14

Statement of facts 15

Discussion of legal principles 16

Standard of review 16

Order of discussion of issues 16

Issues to address 17

Alternative holdings 17

Case citations 18

Secondary sources 18

Quotations 18

Avoiding advocacy 19

Treatment of the court below 19

Disposition and instructions 19
iv

V. Editing the Opinion 21

Problems in judicial writing 21

Wordiness 21

Lack of precision and clarity 21

Poor organization 21

Cryptic analysis 22

Pomposity and humor 22

Guidelines for good writing 22

Eliminate unnecessary words 22

Be succinct and direct 23

Use plain English 23

Use of footnotes and citations 24

Footnotes 24

Citations 24

Careful editing 25

Reread and revise 25

Put the draft aside and come back to it with a fresh perspective 26

Ask a new reader to criticize a draft 26

VI. Writing Joint Opinions, Dissents, and Concurrences 27

Joint opinions 27

Commenting on a draft prepared by another judge 28

Dissenting opinions 28

Concurring opinions 30

VII. Reading About Writing 31

Books 32

Articles 32

Appendix A: Sample Memorandum Opinion 33

Appendix B: Sample Summary Order 35

Appendix C: Sample Standards of Review 37

Appendix D: Sample Dispositions 39

Appendix E: Sample Brief Dissenting Opinions 41

Appendix F: Sample Brief Concurring Opinions 43
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Editor’s Note

The Center prepared the first edition of the Judicial Writing Manual in 

1991 under the guidance of the following Board of Editors:

• Alvin B. Rubin, Chair

U.S. Circuit Judge

• Wilfred Feinberg

U.S. Circuit Judge

• John C. Godbold

U.S. Circuit Judge

Director Emeritus, Federal Judicial Center

• James Dickson Phillips, Jr.

U.S. Circuit Judge

• Louis H. Pollak

U.S. District Judge

• William W Schwarzer

U.S. District Judge

Director Emeritus, Federal Judicial Center

• Clifford Wallace

U.S. Circuit Judge

• Patricia M. Wald

Chief U.S. Circuit Judge

• A. Leo Levin

Professor, University of Pennsylvania

Director Emeritus, Federal Judicial Center

• Paul J. Mishkin

Professor, University of California, Berkeley

• Stephen J. Wermiel

The Wall Street Journal

The Center and the Board of Editors were assisted in preparing 

the first edition by the following judges, who participated in telephone 

interviews to discuss their experience with and views on judicial writing: Ruggero J. Aldisert, Richard S. Arnold, Stephen Breyer, Frank M. 

Coffin, John J. Gibbons, Robert E. Ginsberg, Ruth Bader Ginsburg, 

Frank M. Johnson, Jr., Robert E. Keeton, Lloyd King, James K. Logan, 

Prentice H. Marshall, Monroe G. McKay, Richard A. Posner, Joseph T. 
vi

Sneed, Gerald B. Tjoflat, Jack B. Weinstein, and John Minor Wisdom. 

Their thoughtful responses contributed substantially to this manual.
vii

Foreword to the First Edition

The link between courts and the public is the written word. With rare 

exceptions, it is through judicial opinions that courts communicate 

with litigants, lawyers, other courts, and the community. Whatever 

the court’s statutory and constitutional status, the written word, in the 

end, is the source and the measure of the court’s authority. 

It is therefore not enough that a decision be correct—it must also 

be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world 

that the decision is principled and sound. What the court says, and 

how it says it, is as important as what the court decides. It is important to the reader. But it is also important to the author because in the 

writing lies the test of the thinking that underlies it. “Good writing,” 

Ambrose Bierce said, “essentially is clear thinking made visible.” Ambrose Bierce, Write It Right 6 (rev. ed. 1986). 

To serve the cause of good opinion writing, the Federal Judicial 

Center has prepared this manual. It is not held out as an authoritative pronouncement on good writing, a subject on which the literature abounds. Rather, it distills the experience and reflects the views 

of a group of experienced judges, vetted by a distinguished board of 

editors. No one of them would approach the task of writing an opinion, or describe the process, precisely as any of the others would. Yet, 

though this is a highly personal endeavor, some generally accepted 

principles of good opinion writing emerge and they are the subject of 

this manual. 

We hope that judges and their law clerks will find this manual 

helpful and that it will advance the cause for which it has been 

prepared.

William W Schwarzer

Director Emeritus, Federal Judicial Center

ix

Foreword to the Second Edition

More than twenty years have passed since the Federal Judicial Center published the first edition of this manual on judicial writing. In 

that relatively brief time, many of our basic assumptions about written 

communication have been challenged profoundly by technological 

change. Like books, magazines, and newspapers, orders and opinions 

written by judges are more likely than not to take the form of digital 

images rather than tangible objects.

Indeed, with so much of today’s writing embedded in the truncated protocols of social media and other “real time” forms of expression, the clarity and persuasive quality the authors of the first edition 

sought to teach are particularly important for judges’ writing. But the 

elements of good writing are remarkably constant, and we think that 

you will find the principles explained so thoughtfully in the first edition no less applicable today.

Jeremy D. Fogel

Director, Federal Judicial Center

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Judicial Writing Manual, Second Edition

I. Introduction

Judicial opinions serve three functions. First, written opinions communicate a court’s conclusions and the reasons for them to the parties 

and their lawyers. Second, when published, opinions announce the 

law to judges, academics, other lawyers, and the interested public. Finally, the preparation of a written opinion imposes intellectual discipline on the author, requiring the judge to clarify his or her reasoning 

and assess the sufficiency of precedential support for it. 

The opinion should fairly, clearly, and accurately state the significant facts and relevant rules of law and demonstrate by its analysis 

the reasonableness of its conclusions. Misstating significant facts or 

authorities is a mark of carelessness, and it undermines the opinion’s 

authority and integrity. Unclear or ambiguous writing reflects the author’s lack of clear thinking and defeats the opinion’s purpose. 

This manual is intended to encourage judges and law clerks to 

think critically about their writing—not only about what to include 

and what to exclude, but also about how to write well. We expect that 

newly appointed judges and their law clerks will be the principal users of this manual. It therefore takes a functional approach to opinion 

writing: describing the considerations that arise at each stage of the 

writing and editing process; recommending organizational and stylistic techniques; and explaining the reasons for its recommendations. 

In keeping with the principle that there is no single right way to write 

an opinion, the manual explores alternatives and the considerations 

for choosing among them. 

This manual should also help experienced judges take a fresh look 

at their approaches to writing and their styles. Professor Robert Leflar 

wrote: 

Pride of authorship is by no means an unmitigated evil. .  .  . 

[T]his pride can drive a man to hard work and with meticulous 

effort. The poorest opinions are apt to be written by judges who 

take no pride in them, who regard the preparation of them as 

mere chores. Pride in work well done is a proper incident of good 

craftsmanship in any field of work, including law. An opinion in 

which the author takes no pride is not likely to be much good.1

1. Robert Leflar, Some Observations Concerning Judicial Opinions, 61 Colum. L.

Rev. 810, 813 (1961).
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Judicial Writing Manual, Second Edition

This manual is not intended to proclaim the right way of writing an opinion. Anyone who attempts to announce authoritative rules 

of good writing invites debate and comparison. As one judge said, “I 

have one overarching rule. That is, don’t have any such rules.” Indeed, 

in a leading text on good writing, E. B. White acknowledged that 

“[s]tyle rules of this sort are, of course, somewhat a matter of individual preference, and even the established rules of grammar are open 

to challenge.”2

Instead, the purpose of the manual is to stimulate judges to think 

as systematically about writing their opinions as they do about deciding their cases. Judges should ask themselves: Am I writing this way 

because this is how I’ve always done it, or is there a better way? Is there 

a reason for organizing the opinion this way? For including these particular facts? For discussing this issue at length? For citing this case? 

Is this sentence clear? Are all the words in it necessary? 

In the following parts, the manual takes readers through the 

opinion-writing process. Part 2 suggests issues to consider in deciding 

whether to write a formal opinion, a memorandum, or an unpublished 

opinion. Part 3 discusses steps a judge should take before starting to 

write. Part 4 discusses the organization and content of an opinion. 

Part 5 offers suggestions on language, style, and editing. Part 6 presents considerations for cowriting an opinion, commenting on the 

opinions of other members of the court, and writing dissenting and 

concurring opinions. Part 7 contains a list of books and articles that 

may be useful to those who want to read more about judicial writing. 

The appendices provide examples of some of the writings discussed in 

the manual, such as summary orders and dissenting opinions.

2. William Strunk, Jr., & E. B. White, The Elements of Style xvii (4th ed. 2000).
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Judicial Writing Manual, Second Edition

II. Determining the Scope of the Opinion

A judicial opinion informs parties of the outcome of their case and 

articulates the legal principles on which the decision is based in order 

to guide the bench, the bar, academia, and the public. Because written 

decisions serve both case-deciding and law-making functions, they 

range in form from one-sentence, unpublished summary orders to 

formally structured, citation-laden, full-dress opinions. An opinion 

that is intended only to inform the parties of the outcome of their 

dispute should not be as elaborate as one intended to serve as a precedent. Before beginning to write, judges should decide what purpose 

the opinion will serve and how to write it to suit that purpose. 

Three types of decisions

This manual will refer to three types of written decisions: full-dress 

opinions, memorandum opinions, and summary orders. 

Full-dress opinions are those that present a structured discussion 

of the facts, legal principles, and governing authorities involved in a 

case. The significance or number of the issues presented in a case, the 

novelty of the question it poses, and the complexity of the facts are 

among the factors that determine whether an opinion requires fulldress treatment. 

Memorandum opinions are appropriate if the decision does not 

require a comprehensive, structured explanation but still needs some 

explanation of the rationale. They are generally brief and informal and 

may or may not be published. Per curiam opinions are generally included in this category. Appendix A contains an example of a memorandum opinion. 

Summary orders simply state the disposition of the case. They 

sometimes include a brief statement of findings and conclusions, but 

often provide little or no explanation. Summary orders are usually 

unpublished. Appendix B contains an example of a summary order. 

The next section discusses some of the factors a judge should consider in determining what kind of opinion to write. 

Factors to consider 

Three factors influence the scope and style of an opinion: the complexity of the facts and nature of the legal issues, the intended audi-
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Judicial Writing Manual, Second Edition

ence, and whether the opinion will be published. Although the manual addresses these factors separately, they are interrelated. 

Facts and issues 

The complexity of the facts and the nature of the legal issues are the 

principal factors that determine the kind of opinion required. If the 

precedents are clear and the material facts are not complicated, the 

scope of the opinion will be limited. If the controlling law is uncertain 

or the material facts are complex, exposition and analysis are needed 

to explain the reasons for the court’s decision. Some cases that present 

complex fact patterns may require lengthy discussion of the facts even 

though the applicable law may be simple. Other cases that raise novel 

legal issues may require extended analysis of law and policy. 

The scope of an opinion will be influenced by how well developed 

the law is on the matter at issue. Judges should consider whether the 

issue has previously been decided authoritatively and whether another opinion would aid in the development or explanation of the law. If 

the issue has been thoroughly discussed in prior opinions, the judge 

need not trace the origins of the law or elaborate on its interpretation. 

In some cases, it is sufficient to affirm a decision for the reasons stated 

by the court below. If the decision merely closes a gap in existing law, 

little more is needed than an explanation of the applicable principles 

and the reasons for the court’s choice among them. If, however, the 

decision contributes to the development of the law, a brief, published 

per curiam or memorandum opinion is appropriate. A summary order may be sufficient if clear existing law is simply being applied to 

facts that are undisputed or that are made indisputable on appeal because, for example, they are jury findings supported by substantial 

evidence. 

When, however, an opinion involves less developed areas of the 

law and lays down a new rule or modifies an old one, the judge must 

think not only about the decision’s rationale but also about its impact 

as precedent. The judge should discuss and analyze the precedents in 

the area, the new direction the law is taking, and the effect of the decision on existing law. Even if it appears that the litigants do not need a 

detailed statement of the facts, the opinion should present sufficient 

facts to define for other readers the precedent it creates and to delineate its boundaries. The relevant precedents—and the relevant poli-
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Judicial Writing Manual, Second Edition

cies—should be analyzed in sufficient detail to establish the rationale 

for the holding. 

Audience 

Opinions are written primarily for the litigants and their lawyers, 

and for the lower courts or agencies whose decisions they review. If 

an opinion is addressed to the parties, it should provide them with a 

fair and accurate statement of what was before the court for decision, 

what the court decided, and what the reasons for the decision were. 

This can generally be accomplished without a full-dress opinion. The 

parties will be familiar with the facts and will generally not be interested in an extensive exploration of the law, other than what is needed 

to give the losing party a clear explanation for the result. 

The judge must also ask whether the opinion has something to say 

to others besides the parties. Opinions intended to inform other audiences may require additional factual development and legal analysis. 

How much analysis is required, and how detailed it must be, depends 

on the subject matter and the probable audience. Judges may assume 

a certain level of familiarity with the law on the part of lawyers. But if 

a case involves an arcane area of law familiar primarily to specialists—

tax, labor, or antitrust law, for example—a thorough discussion of the 

facts and legal background will be needed, and the judge should avoid 

the use of technical language and should define any technical terms 

that must be used. 

An opinion remanding a case must tell the lower court what is 

expected on remand. An opinion that sets guidelines for trial courts 

to follow must state the factual basis, legal rationale, and policy foundation of the guidelines sufficiently so that trial judges can apply them 

correctly. 

The judge needs to consider whether a statement of facts and legal 

analysis that adequately explain the decision to the parties will also 

enable a higher court to understand the basis for the decision. When 

the decision is based on complex facts, a more elaborate explanation 

than is necessary for the parties may be helpful to the appellate court. 

And when the decision involves novel issues or an emerging area of 

law, it is appropriate to trace the prior development of the law and 

to explain the legal and policy rationales at some length. Opinions 

should not, however, be turned into briefs or vehicles for advocacy. 
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Judicial Writing Manual, Second Edition

Members of the general public will rarely read opinions. But reporters from the media will communicate what they believe to be the 

substance of an opinion that strikes them as being of public interest. 

When an opinion addresses an issue of general public interest or is 

likely to attract media attention, it should be written in a manner that 

will ensure it cannot be misunderstood. The mark of a well-written 

opinion is that it is comprehensible to an intelligent layperson. 

Publication 

The courts of appeals have adopted rules, internal operating procedures, and other policies concerning publication and non-publication 

of opinions. Some of the policies specify criteria for determining 

whether an opinion should be published. For example, D.C. Circuit 

Rule 36(c)(2) establishes the following publication criteria: 

An opinion, memorandum, or other statement explaining the basis for this court’s action in issuing an order or judgment will be 

published if it meets one or more of the following criteria: 

(A) with regard to a substantial issue it resolves, it is a case of 

first impression or the first case to present the issue in this court; 

(B) it alters, modifies, or significantly clarifies a rule of law 

previously announced by the court; 

(C) it calls attention to an existing rule of law that appears to 

have been generally overlooked; 

(D) it criticizes or questions existing law; 

(E) it resolves an apparent conflict in decisions within the circuit or creates a conflict with another circuit; 

(F) it reverses a published agency or district court decision, 

or affirms a decision of the district court upon grounds different 

from those set forth in the district court’s published opinion; 

(G) it warrants publication in light of other factors that give it 

general public interest.

Similar criteria are included in First Circuit Rule 36(b)(1); Fourth 

Circuit Rule 36(a); Fifth Circuit Rule 47.5.1; Sixth Circuit Internal 

Operating Procedure 32.1(b); Ninth Circuit Rule 36-2; and Federal 

Circuit Internal Operating Procedure 10.

Other circuits have more general guidelines, giving judges latitude 

to decide whether to publish opinions. The Third Circuit, for example, 
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Judicial Writing Manual, Second Edition

has “two forms of opinions: precedential and not precedential,” and 

“[p]recedential opinions are posted on the court’s internet website.”3

The Second Circuit permits disposition by summary order “[w]hen 

a decision in a case is unanimous and each panel judge believes that 

no jurisprudential purpose is served by an opinion . . . .”4 Otherwise, 

written opinions, including per curiam opinions, are published.5

In the district courts, the decision to publish is entirely in the 

judge’s discretion. (Note, however, that some legal publishers, including Westlaw, put certain district court orders and opinions on line 

whether or not the judge designates them for publication and even 

sometimes when a judge states that the order or opinion is “not for 

publication” or “not to be cited.” The publishers base their decision 

on whether they think that the order or opinion is significant or otherwise of interest.) Because decisions of district judges are merely 

persuasive authority—that is, they are not binding precedent even 

in their own districts—publication of such decisions should be the 

exception. In addition, time constraints argue against writing formal 

opinions unless the decision involves a novel or complex issue or a 

matter of public importance and thus may be useful to attorneys and 

judges or be of interest to the public. 

Because unpublished decisions are written primarily for the parties, they will require little or no elaboration of the facts and law. Often 

they will take the form of summary orders or memorandum opinions. 

The determination as to whether a disposition should be published 

or unpublished should be made as soon as possible, so that the judge 

who writes the opinion will not spend an undue amount of time on it 

if publication is not warranted. 

3. 3d Cir. I.O.P. ch. 5.1, 5.2. See also 7th Cir. R. 32.1 (“It is the policy of the circuit 

to avoid issuing unnecessary opinions”); 8th Cir. I.O.P. IV.B (“The panel determines 

whether the opinion . . . is to be published or unpublished”); 11th Cir. I.O.P. 6 (“Opinions that the panel believes to have no precedential value are not published”).

4. 2d Cir. I.O.P. 32.1.1.

5. See also 10th Cir. R. 36.1 (permitting disposition without opinion when “the 

case does not require application of new points of law that would make the decision 

a valuable precedent”).

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Judicial Writing Manual, Second Edition

III. Preparing to Write the Opinion

Before beginning to write an opinion, judges should think through 

what they want to say and how they want to say it. They should consider the scope of the opinion, the prospective audience, and whether 

the opinion will be published. They should marshal the material facts, 

identify the issues and the applicable rules of law, and determine the 

appropriate form of judicial relief. In short, they must break the case 

down into its components. A judge should have reached a decision—

if only a tentative one—before beginning to write an opinion. Setting 

down the reasons in writing then constitutes the process of justifying the decision. As Judge Ruggero Aldisert wrote, “If a judge wants 

to write clearly and cogently, with words parading before the reader 

in logical order, the judge must first think clearly and cogently, with 

thoughts laid out in neat rows.”6

This does not mean that judges will not change their minds after 

they have started to write. Sometimes judges may decide in advance 

where they want to go, but in the process of writing discover that they 

cannot get there. Justice Roger Traynor wrote that he 

found [no] better test for the solution of a case than its articulation in writing, which is thinking at its hardest. A judge, inevitably preoccupied with the far-reaching effect of an immediate 

solution as a precedent, often discovers that his tentative views 

will not jell in the writing. He wrestles with the devil more than 

once to set forth a sound opinion that will be sufficient unto more 

than the day.7

Nevertheless, the writing should reflect only the final decision and the 

reasons for it. If the decision is a close one, the opinion should say so, 

but it should not record every step and misstep the writer took along 

the way. 

Developing outlines 

Outlines help to organize a writer’s thoughts. For judicial writing, 

they may take a variety of forms: 

6. Ruggero J. Aldisert, Opinion Writing 11 (2d ed. 2009).

7. Roger Traynor, Some Open Questions on the Work of State Appellate Courts, 24 

U. Chi. L. Rev. 211, 218 (1957).
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Judicial Writing Manual, Second Edition

• a formal, written outline prepared by the judge or a law clerk; 

• a rough sketch of important facts, issues, and points to discuss;

• a bench memorandum prepared by a law clerk in advance of 

oral argument, which the judge has marked up after the argument and conference; 

• a brief checklist; or 

• perhaps only an unwritten mental framework. 

Whatever the outline’s form, the point is that judges, like all other 

good writers, must organize their thoughts before starting to write. 

A good time to prepare an outline is shortly after the conference 

at which the case is discussed and the opinion assigned, when the 

judge’s own ideas and those of the other judges are fresh in mind. The 

outline can then also serve as an informal record of the discussion at 

the conference. 

Using law clerks 

Law clerks can provide substantial assistance to the judge faced with 

writing an opinion. Discussions with law clerks are helpful in planning the opinion and developing the outline. The opportunity to test 

one’s thoughts in vigorous exchanges with the clerks throughout the 

opinion-writing process is invaluable. The judge and the law clerks 

can discuss and criticize the opinion as it develops, ferret out error 

and ambiguity, and polish the final product. 

In the writing process itself, judges use their law clerks in different 

ways. Some limit the clerk’s work to performing research; preparing 

bench memos; and editing, cite-checking, and commenting on the 

judge’s drafts. Some assign the writing of the first draft to a law clerk 

in routine cases only; others have clerks write first drafts in even the 

most complex cases, having found that working from a draft makes 

the task of writing the opinion easier. A clerk assigned to write the 

first draft should use an outline developed by or with the judge, and 

should understand the scope, organization, and probable outcome of 

the opinion. 

Many judges, having found that it takes more time to work with a 

clerk’s draft, write their own draft, then polish it into the final product. 

Some judges invite the law clerk to rewrite the judge’s first draft before the judge returns to it for preparation of the final version. Work-
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ing with electronic documents facilitates this give-and-take between 

judges and law clerks in drafting opinions. 

The process the judge uses depends on his or her own work habits and style and on the capabilities of the law clerk. The judge must 

always remember, however, that the law clerk usually is fresh out of 

law school and has little practical experience. Even a distinguished 

academic record does not qualify a law clerk to practice the craft of 

judging, to draw the fine line between reversible and harmless error, 

to make the sometimes delicate assessment of the effect of precedent, 

or to recognize subtle distinctions in the applicable law. It is the unusual law clerk who has perfected a writing style that makes for a satisfactory opinion. Law clerks’ fact statements, analysis, and conclusions may require major revisions. Judges should not simply edit draft 

opinions. No matter how capable the clerk, the opinion must always 

be the judge’s work. 

Reviewing materials 

Little need be said about the materials to review. The judge will, of 

course, have the briefs of the parties and the law clerk’s bench memorandum. When an opinion turns on the specifics of testimony or on 

what occurred in the courtroom, there may be no substitute for reading the relevant portions of the transcript; rarely will excerpts or summaries in briefs convey the significance of these events fairly and fully. 

If an exhibit is crucial, it should be examined. Reference to the record 

may also be necessary to determine the precise procedural course by 

which an appeal has reached the court and the relevant proceedings 

below. The judge will therefore want to have access to the record while 

preparing the opinion. Listening to an audio recording of oral argument, if one is available, can help refresh the judge’s memory of the 

significant issues and the arguments made. 

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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, wellreasoned 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 numerals, 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 Introduction, then early in the opinion, preferably by name, and 
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names should be used consistently throughout. (The use of legal descriptions, such as “appellant” and “appellee,” tends to be 

confusing, especially in multi-party cases.)

2. The procedural and jurisdictional status: The basis for jurisdiction, 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 identified, 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 precisely 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 differs 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 meaningful 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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Judicial Writing Manual, Second Edition

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 historical 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 unpublished 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 explaining its rationale. And opinions that are likely to be read by audiences 

other than the parties may require lengthier fact statements to provide 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 readability. 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. Although 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 obscure. 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. Generally, 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. Occasionally, 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 decision if the judge can thereby provide useful guidance for the lower 

court on remand. However, judges must be careful not to decide issues that are not before them and to avoid advisory opinions and unnecessary expressions of views that may tie the court’s hands in a future case. 

Alternative holdings 

Stating separate and independent grounds for a decision adds strength 

to the decision but diminishes its value as a precedent. Professor Bernard 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 authority 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 between 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 contentious or adversarial tone.

An opinion can—and properly should—carry conviction without 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 provide guidance on remand, but they need not attack a trial court’s wisdom 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 riddles. 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 authority 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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V. Editing the Opinion

Problems in judicial writing 

The judges who were interviewed for this manual identified the following as the major problems in judicial writing: wordiness, lack of 

precision and clarity, poor organization, cryptic analysis, and pomposity and humor. 

Wordiness 

Wordiness means not just using two words when one will do, but trying to convey too much information and covering too many issues. 

In trying to write authoritatively, some judges belabor the obvious in 

lengthy discussions of uncontroversial propositions. Often wordiness 

reflects the writer’s failure (or inability) to separate the material from 

the immaterial and do the tedious work of editing. 

Lack of precision and clarity 

Precision and clarity are the main concerns of good writing. Some legal writers lack the ability to write simple, straightforward prose. Often this is the result of some lawyers’ tendency to overgeneralize when 

they are not sure of a legal principle or of how to state it precisely; they 

finesse the difficulty with vague expression. To write with clarity and 

precision, the writer must know exactly what he or she wants to say 

and must say that and nothing else. 

Precision in judicial writing is important because judges write 

for posterity. Once an opinion is filed, lawyers and others will read 

it with an eye to how they can use it to serve their particular purpose, no matter how different that may be from what the judge had 

in mind. Thus, it is important for judicial writers to think about how 

their words might be used and to write in a manner that will forestall 

their misuse. 

Painstaking and thoughtful editing is essential for precise writing. 

This means going over the opinion, sentence by sentence, and asking: 

What do I mean to say here, and have I said it and no more? 

Poor organization 

Another problem in judicial writing is poor organization. A sound 

opinion is the reflection of a logical process of reasoning from prem-
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ises through principles to conclusions. The framework in which that 

process takes place should be visible to the reader from the organization of the opinion. That organization will be a road map that enables 

the reader to follow the reasoning from the beginning to the end without getting lost. 

Cryptic analysis 

While brevity is desirable in an opinion, judges must elaborate their 

reasoning sufficiently so that the reader can follow it. An opinion that 

omits steps in the reasoning essential to understanding it will fail to 

serve its purposes. 

Pomposity and humor 

Judicial writing can be pompous. The judge must avoid pompous 

writing in an opinion, such as arcane or florid language, use of the 

imperial “we” (by a single district judge), or expressions of irrelevant 

erudition. Although the use of humor is sometimes rationalized as an 

antidote to pomposity, it works better in after-dinner speeches than 

in judicial opinions. In the latter, it may strike the litigants—who are 

not likely to see anything funny in the litigation—as a sign of judicial arrogance and lack of sensitivity. Although some judges seem to 

have succeeded in using humor in their opinions, it is a risk not to be 

taken lightly. Nor need it be taken at all, for writing can be made lively, 

forceful, and interesting by its clarity and logic. 

Guidelines for good writing 

The following guidelines are suggested to help writers of opinions recognize and avoid the problems discussed above: eliminate unnecessary words, be succinct and direct, and use plain English.

Eliminate unnecessary words 

It is difficult to improve on Professor Strunk’s injunction to omit 

needless words: 

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the 

same reason that a drawing should have no unnecessary lines and 
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a machine no unnecessary parts. This requires not that the writer 

make all sentences short, or avoid all detail and treat subjects only 

in outline, but that every word tell.9

Be succinct and direct 

Brevity promotes clarity. Writing that makes its point briefly is more 

likely to be understood than writing that is lengthy. Writing succinctly 

also forces the writer to think clearly and focus on what he or she is 

trying to say. 

Judicial writing should be direct. Judicial writers should use simple, declarative sentences and short paragraphs most of the time, but 

vary sentence length and structure where necessary for emphasis or 

contrast. They should also use the active voice and avoid such constructions as “it is said,” “it is argued,” and “it is well founded.” They 

should weed out gratuitous adjectives and eliminate unnecessary adverbs such as “clearly,” “plainly,” and “merely.” 

Use plain English 

Even complex ideas can be expressed in simple language that the lay 

reader can understand. To express an idea in simple language requires 

that the writer understand the idea fully, enabling him or her to break 

it down into its essential components. For example, although electricity is a complex scientific phenomenon, it can be explained in terms 

laypersons understand. So can tax, antitrust, and patent law. Judges 

should avoid using clichés, hackneyed phrases (“as hereinabove set 

forth,” for example), Latin expressions (“vel non,” for example), and 

legal jargon. When using terms of art, judges should consider whether they are commonly understood by their audience or require plain 

English definitions. There is a place for the elegant word, but it should 

not be necessary for the reader to have a dictionary at hand while 

reading an opinion. As legal writing expert Bryan Garner has written:

[N]ever assume that traditional legal expressions are legally 

necessary. As often as not they are scars left by the law’s verbal 

elephantiasis, which only lately has started into remission. Use 

words and phrases that you know to be both precise and as widely 

9. Strunk & White, supra note 2, at 23. 
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understood as possible. Rarely can you justify the little-known 

word on grounds that it is a term of art.10

Use of footnotes and citations 

Footnotes 

The purpose of a footnote is to convey information that would disrupt the flow of the opinion if included in the text. The first question 

a judge should ask about a prospective footnote is whether its content is appropriate for inclusion in the opinion. If it is not important 

enough to go into the text, the judge must have some justification for 

including it in the opinion at all. The use of footnotes can be appropriate to convey information that supports the language of the opinion 

but is not necessary to understand it, such as the text of a statute or 

material from the record. Footnotes can also be used to acknowledge 

and briefly dispose of tangential issues. Some judges place all citations 

in footnotes, leaving the text entirely for discussion. But footnotes 

should not be used simply as a repository for information that the 

judge wants to keep but does not know what to do with. Some judges, 

conscious of the tendency to overuse footnotes, have strived to eliminate or at least reduce the number of footnotes in their opinions.11

Citations 

The leading legal citation manual is The Bluebook: A Uniform System 

of Citation.

12 Mastering the arcana of citation forms, however, is not a 

productive use of judges’ or law clerks’ time. The purpose of citations 

is to assist researchers in identifying and finding the sources; a form 

of citation that will serve that end is sufficient. Whatever form of citation is used, it should be used consistently to avoid confusion and the 

appearance of lack of craftsmanship and care. Some judges maintain 

personal citation forms or style manuals that reflect their preferences. 

Such forms and manuals promote consistency, help orient new clerks, 

and encourage careful preparation of opinions. 

10. Bryan A. Garner, The Elements of Legal Style 193 (2d ed. 2002).

11. See, e.g., Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).

12. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n 

et al. eds., 19th ed. 2010) [hereinafter The Bluebook].
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Careful editing 

Careful writers edit their work critically to clarify the ambiguities, 

eliminate the superfluous, smooth the transitions, and tighten the 

structure. This is not an easy task, because when reading their own 

writing, writers tend to read what they meant to write rather than 

what they actually wrote. 

Judges must strive to be objective about their writing, to read every paragraph carefully, and not to skip over text because it is familiar. 

A judge who is editing his or her own work must always ask these 

questions: Have I said precisely what I intended to say? Is there a better way to say it? Does the thought flow clearly and logically? Will the 

reader understand it? 

The following techniques should help judicial writers improve 

their editing skills. 

Reread and revise 

Editing an opinion involves striking needless words and unnecessary 

facts, rewriting unclear sentences, eliminating repetition, reorganizing, and making the opinion cleaner and sharper. “I spend a lot of 

time editing, clearing away my own and the clerks’ underbrush,” one 

judge said. “The underbrush may be valuable someplace or sometime, 

but not here and now.” This process may take the judge through many 

drafts before a polished opinion emerges. 

Electronic word processing software is a boon to writers and editors. It greatly speeds up the writing process and facilitates editing and 

revising. But proofreading text on a computer screen is demanding, 

and without careful and repeated checking of a printed copy, typographical and other errors can be easily missed, even if automated 

spelling and grammar features are used. 

In editing their opinions, judges should not focus solely on language, grammar, and style. They must also 

• check for internal consistency;

• go back to the Introduction to see whether the opinion has 

addressed all of the issues and answered the questions as they 

were initially formulated; 

• reread the statement of facts to see whether it covers all the 

facts significant to the decision and no more;
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• review the legal discussion to see whether the opinion has addressed in logical order the issues that need to be addressed; 

and 

• consider whether the Conclusion follows from the discussion. 

Put the draft aside and come back to it with a fresh perspective

Judges can improve the editing process by “let[ting] the draft sit for 

a while and simmer,” as one judge said. Although time constraints 

and mounting caseloads may make it difficult, delaying editing the 

opinion for even a few days may help the judge review things more 

objectively, gain new insights, and think of new ideas. 

Ask a new reader to criticize a draft 

A law clerk who has not worked on the opinion can serve a useful 

function by reading the draft with a fresh eye and offering editorial 

and substantive criticism. Even law clerks who have assisted the judge 

with the opinion can provide an editorial perspective that will help 

improve the finished product. 
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VI. Writing Joint Opinions, Dissents, and 

Concurrences 

Appellate opinions represent the collective decision of several judges. 

The judge who writes the opinion must take into account the thinking 

of the other judges on the panel or en banc court and incorporate it 

into the opinion’s rationale. Sometimes several judges participate in 

preparing an opinion, for example, when an opinion is written jointly 

or when judges comment on drafts prepared by the judge assigned to 

write the opinion. When the opinion does not represent the thinking 

of all of the members of the court, some judges may choose to prepare 

concurring or dissenting opinions. This part discusses some of the 

collegial considerations in opinion writing. 

Joint opinions

In some circuits, the complexity and number of issues involved in a 

single case have resulted in jointly written opinions. Sometimes the 

opinion is designated as per curiam; at other times the authors of the 

different sections are identified. The review of long and technical administrative records in the D.C. Circuit, for example, has resulted in 

joint opinions.13

When a panel chooses to issue a joint opinion, considerable planning and coordination by both judges and law clerks are necessary 

to ensure a readable and coherent final opinion. It is desirable for the 

judges to hold a longer-than-usual post-argument conference to discuss the assignment of opinion sections, their interdependence, and 

joint assumptions or factual predicates. The panel may need to determine the sequence of sections to avoid confusion and repetition of 

basic facts or legal analyses. 

Generally, one judge on the panel must assume coordinating authority and circulate an outline and summary of the proposed sections before writing begins. One judge, usually the coordinating 

judge, must also take responsibility for writing the Introduction and 

Conclusion, which cover all sections. The Introduction is usually brief 

13. See, e.g., Nat’l Wildlife Fed’n v. Hodel, 839 F.2d 694 (D.C. Cir. 1988); Ohio 

v. U.S. Dep’t of Interior, 880 F.2d 432 (D.C. Cir. 1989). See also Chem. Mfrs. Ass’n v. 

Envtl. Prot. Agency, 870 F.2d 177 (5th Cir. 1989).
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and confined to a statement of the proceedings leading to the court 

challenge. The facts in detail are better presented as needed in the 

individual sections. 

After the authors have drafted and approved the various sections, 

the coordinating judge should assume authority to make non-substantive changes to the draft to eliminate duplication or gross stylistic 

differences. The law clerks usually meet to decide on a uniform citation and heading format. 

Commenting on a draft prepared by another judge 

Judges circulate draft opinions to other judges on a panel or en banc 

court to ensure that the opinion reflects the rationale of the judges in 

the majority. When commenting on an opinion written by another 

judge, it is always appropriate to comment on the opinion’s substance, 

but inappropriate to comment on matters of style. When the distinction between substance and style is fuzzy, judges’ comments are appropriate if the matter in question seems to speak for the court and 

thus might send a message that does not represent the view of the 

other judges. 

If, for example, the discussion of a substantive issue is not written clearly, the other judges should bring this to the attention of the 

writing judge. When a citation to a case or law review article may 

represent a rationale that is not adopted by other judges, they should 

express their disagreement to the writing judge. When, however, a 

reviewing judge objects to stylistic, grammatical, or language choices 

simply on the basis of personal preference, such objections are best 

left unexpressed. Nevertheless, although judges are not grading the 

work of their colleagues, it is helpful to point out minor matters, such 

as typographical errors, either by a note to the author or by a telephone call between law clerks. 

Dissenting opinions 

Dissenting opinions can serve useful functions in communicating 

important information to an opinion’s audiences and furthering the 

growth of the law. They may help to encourage en banc or certiorari 

review and to isolate and refine the issues for further appeal. They 
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may promote legislative action to correct possible shortcomings in 

the law. Dissenting opinions may also help to narrow the scope of a 

decision by pointing out the possible dangers of the position the majority has taken or by indicating to other judges and the bar the limits 

of a particular decision and its effect on similar cases in the future. 

Dissenting opinions are written at a potential cost, however. A 

dissent that sounds strident or preachy may contribute to divisiveness and ill feelings in the court, may undermine the authority of the 

majority opinion and of the court as an institution, and may create 

confusion. Whether judges should dissent depends on the nature of 

the case and the principle at issue. Judges generally should not write 

dissenting opinions when the principle at issue is settled and the decision has little significance outside the specific case. Cases that involve 

emerging legal principles or statutory interpretation in areas that will 

affect future activities of the bar, the public, and the government are 

more likely to warrant dissenting opinions than cases of limited application. The issue should be significant enough that the judge’s “fever 

is aroused,” as one judge said, but the motivation for writing a dissent 

should be to further the development of the law rather than to vent 

personal feelings. Judges considering whether to dissent should ask 

themselves whether the likely benefits outweigh the potential costs. 

If a judge decides that writing a dissent will serve a useful purpose, the judge should write it as carefully and responsibly as an opinion of the court. Rarely should a judge dissent without an opinion; 

doing so communicates no information to the opinion’s readers. The 

dissenting opinion should focus on the critical principles and distinguish the dissenter’s rationale from that of the majority. The dissenting judge should state the points of disagreement forcefully and 

effectively without engaging in argument or advocacy. A dissenting 

opinion should not simply slash at the majority opinion or its author. 

Personal attacks, offensive language, or a condescending tone should 

not be used, although some judges believe that expressing moral outrage and restrained indignation may sometimes be appropriate. 

Appendix E contains examples of brief dissenting opinions that 

reflect a temperate, reasoned tone in expressing sincere disagreement 

with the majority.
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Concurring opinions

Most of the considerations applicable to dissenting opinions also apply to concurrences. Concurring opinions are appropriate where they 

are intended to define with greater precision the scope of the majority 

opinion or otherwise inform the parties and other audiences of what 

the writer believes are important points. Thus, judges may issue concurrences when there are two argued grounds for a decision, the majority justifies its decision on one of those grounds, and other judges 

believe the alternative ground should be stated. Concurrences may 

also serve to indicate to parties in future cases how far the court is 

willing to go down a particular road. A judge should not write a concurring opinion simply to add a point of view or personal statement 

that does not further either the decisional or educational value of the 

majority opinion. In deciding whether to write a concurring opinion, 

the judge should ask the question: Am I writing this for myself or for 

the good of the court? 

Judges should include in their concurring opinions a statement 

of reasons why they are concurring. The point is not to present an 

alternative opinion of the court, but to indicate the point of departure 

from the majority and to further define the contours of the majority opinion. Concurrences should also not rehash the facts and legal 

principles on which the majority based its decision, unless the judge 

has interpreted the facts and principles in a different way. The arguments should be principled, and the tone should be instructive but 

not pedantic. 

Appendix F contains examples of useful and narrowly written 

concurring opinions. 
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VII. Reading About Writing 

One of the judges we interviewed said, “I think judges should constantly read books on writing.” A dictionary, a thesaurus, and The 

Bluebook: A Uniform System of Citation14 are the basic writing aids 

judges should have at hand. Judges should also be familiar with manuals on style and grammar and refer to them when questions arise. 

Strunk & White’s The Elements of Style15 is clear and concise, and is 

considered by many authorities to be the leading guide on writing 

style. A copy of it should be in every chambers. Many judges and legal 

writing experts consider Bryan Garner to be the preeminent authority 

on legal writing style. He has written numerous books on the topic, 

including The Elements of Legal Style16 and the more comprehensive 

The Redbook: A Manual on Legal Style.17

Some judges find that reading old opinions helps them to improve 

the clarity of their writing. “Sometimes I’ll remember an opinion that 

I think was particularly good in terms of teaching the legal principles,” 

one judge said. “The old opinion will become sort of a textbook for 

how to skin that cat.” 

Another judge said, “I always tell my clerks to go back and read 

some good authors to see how they write and then try to think about 

that when they are writing law.” Another observed: 

I find the best tool for trying to keep your writing from being totally dull and hard to read is to read non-legal things. I think the 

more non-legal books you read, the more you pick up interesting 

popular terms having application to the law and the more you 

can stay away from legal jargon or the same tired old words. I find 

that reading outside of the law, sometimes a phrase will stick in 

your mind, sometimes a word, sometimes an image. Analogizing 

to non-legal situations can liven up your writing, as can introducing unexpected words and images. 

This manual will not suggest what should be on a judge’s non-legal 

reading list (although several judges suggested that Ernest Hemingway’s lean style is an excellent model for legal writing). The following, 

14. The Bluebook, supra note 12.

15. Strunk & White, supra note 2. 

16. Bryan A. Garner, The Elements of Legal Style (2d ed. 2002).

17. Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. 2006).
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however, are books and articles on legal writing that will assist judges 

in preparing clear and concise opinions. 

Books 

Ruggero A. Aldisert, Opinion Writing (2d ed. 2009).

Bryan A. Garner, The Elements of Legal Style (2d ed. 2002).

Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. 

2006).

Joyce J. George, Judicial Opinion Writing Handbook (5th ed. 2007). 

William D. Popkin, Evolution of the Judicial Opinion: Institutional 

and Individual Styles (2007).

Bernard E. Witkin, Manual on Appellate Court Opinions (1977).

Richard C. Wydick, Plain English for Lawyers (5th ed. 2005).

Articles 

Joseph Kimble, The Straight Skinny on Better Judicial Opinions, 9 

Scribes J. Legal Writing 1 (2003–2004).

Robert A. Leflar, Some Observations Concerning Judicial Opinions, 61 

Colum. L. Rev. 810 (1961).

Abner J. Mikva, The Lester W. Roth Lecture: For Whom Judges Write,

61 S. Cal. L. Rev. 1357 (1988). 

Edward D. Re, Appellate Opinion Writing (Federal Judicial Center 

1975).

Timothy P. Terrell, Organizing Clear Opinions: Beyond Logic to Coherence and Character, 38 Judges J. 4 (Spring 1999).

Irving Younger, Bad Writing = Bad Thinking, A.B.A. J. 90 (Jan. 1, 

1987).
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Appendix A: Sample Memorandum Opinion 

The following excerpt is an example of a memorandum opinion. 

This is a consolidated appeal from two actions . . . . Defendants 

.  .  . appeal from final judgments of foreclosure and sale entered in 

the [district court] dated . . . and . . . . We need not recite the facts of 

this case, since they are set forth in detail in the district court’s two 

thorough opinions, reported at . . . . Familiarity with these facts is assumed. See also [related action]. 

The principal argument of [defendants] on appeal is this: The district court erred in dismissing the “faithless agent” defense to foreclosure under [state] law. That defense is an attempt to avoid the established rule of agency law that a principal is liable to third parties 

for the acts of an agent operating within the scope of the agent’s real 

or apparent authority. See British American & Eastern Co. v. Wirth 

Ltd., 592 F.2d 75, 80 (2d Cir. 1979). Appellants .  .  . do not contest 

that appellee . . ., the mortgagee of the properties involved here, was 

a third party. Nor do they deny that [appellee] was dealing with their 

agent [land company] and that the latter was acting within the scope 

of its apparent authority. Nevertheless, they invoke the faithless agent 

defense, claiming that [appellee] should be barred from foreclosing 

because it was aware of the mismanagement of B . . ., who was acting 

as president of [the land company]. To support this view, they point 

to evidence that [appellee] believed that B’s mismanagement was the 

root cause of the default. 

We are not persuaded that the district court erred in rejecting the 

faithless agent defense. Assuming arguendo that this defense may be 

invoked under the right circumstances, we considered and rejected it 

in [citation]. Indeed, the party asserting the faithless agent defense in 

[citation] appears to have been essentially the same, in all but name, 

as [defendants]. [Citation.] Moreover, even if, as defendants contend, 

principles of collateral estoppel do not bar their claim, we find the 

reasoning of the [citation] panel dispositive on this record. “It cannot 

be that a mortgagee’s awareness of defaults under a mortgage constitutes awareness that a managing agent is engaged in self-dealing.” 

[Citation.] On the record before us, “[f]aced with only conclusory allegations and unsupported factual assertions,” we reject, as did the 
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[citation] panel, the “‘faithless agent’ defense.” [Citation.] 

The judgments of the district court are affirmed. 
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Appendix B: Sample Summary Order

The following is an example of a summary order. 

This cause came to be heard on the transcript of record from the 

United States District Court for the District of ______ and was taken 

under submission. 

1. Plaintiff . . . appeals pro se from an order dated December 21, 

1989 of the United States District Court for the District of 

______ denying appellant’s motion for reconsideration of the 

district court’s order of October 12, 1989, which granted the 

cross-motion for summary judgment of defendants-appellees 

. . . . This civil rights case arises out of appellees’ failure to hire 

appellant for a position at the Veterans Administration Medical Center in . . . .

2. Appellant’s principal claims on appeal appear to be that the 

district court abused its discretion, misinterpreted the facts 

in this case, misapplied various laws and misinterpreted Congress’s intent in enacting Title VII of the Civil Rights Act of 

1964. 

3. We have carefully examined all of appellant’s claims, and they 

are without merit. We affirm substantially for the reasons stated in the thorough opinions of . . . dated October 12, 1989 and 

December 21, 1989. 

4. The order of the district court is affirmed. 

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Judicial Writing Manual, Second Edition

Appendix C: Sample Standards of Review 

The following are examples of clearly stated standards of review. 

We review a district court’s denial of a motion for a new trial for 

an abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 

1985). The reviewing court must consider whether the decision of the 

lower court “was based on a consideration of the relevant factors and 

whether there has been a clear error of judgment.” Citizens to Preserve 

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 823, 28 L. 

Ed. 2d 136 (1971).

* * *

Section 10(j) of the National Labor Relations Act, 29 U.S.C. 

§ 160(j) (1982), authorizes district courts to grant interim injunctive 

relief to restore and preserve the status quo pending the Board’s decision on the merits of an underlying unfair labor practice complaint. 

E.g., Asseo v. Pan American Grain Co., Inc., 805 F.2d 23, 25 (1st Cir. 

1986); Fuchs v. Hood Industries, Inc., 590 F.2d 395, 397 (1st Cir. 1979). 

Under this statutory scheme, the district court is limited to the determination of (1) whether there is reasonable cause to believe that a 

violation of the Act, as alleged, has been committed, and (2) whether 

injunctive relief is appropriate under the circumstances. Asseo, 805 

F.2d at 25; Maram v. Universidad Interamericana de Puerto Rico, 722 

F.2d 953, 959 (1st Cir. 1983).

As we have previously stated, on appeal, this court’s review is: 

limited to [determining] whether the district court was clearly 

erroneous in finding reasonable cause to believe that there were 

unfair labor practices and whether it abused its discretion in 

granting injunctive relief. Union de Tronquistas de Puerto Rico v. 

Arlook, 586 F.2d 872, 876 (1st Cir. 1978).

Asseo, 805 F.2d at 25. With these standards firmly in mind, we turn 

now to the merits of the appeal. 

* * *

In reviewing findings by bankruptcy courts, we and the district courts 

may only reverse factual findings where we determine that they are 

clearly erroneous. In re Killebrew, 888 F.2d 1516, 1519 (5th Cir. 1989). 

Legal determinations, of course, we review de novo. In re Comp-
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Judicial Writing Manual, Second Edition

ton, 891 F.2d 1180, 1183 (5th Cir. 1990). As this appeal hinges upon 

whether [the debtor] intentionally deceived [the creditor]—a factual 

determination—we apply the clearly erroneous standard. Cf. In re Rubin, 875 F.2d 755, 758 (9th Cir. 1989). 
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Judicial Writing Manual, Second Edition

Appendix D: Sample Dispositions

The following are examples of good, instructive dispositions.

We therefore grant the petition for review and order the [agency] not to initiate further prosecutions under the Penalty Rules until 

the agency has engaged in further rulemaking in accord with section 

553. Nonetheless, pursuant to our remedial powers, we hold that the 

[agency] is free to hold pending cases in abeyance and resume prosecution upon the repromulgation of a scheme for adjudicating administrative civil penalty actions under section 1475. 

* * *

For the foregoing reasons we will reverse the order of __________, 

dismissing this action and will remand the case to the district court to 

reinstate this action. On remand the district court should consider the 

preemption argument on the merits unless it upholds another defense 

to this action.

* * *

For the reasons stated, we order the district court to do the following: (1) The court will reconsider its order in respect to VOC cleanup; 

it will amend that order to require [defendant] to clean up VOCs in 

the soil at the . . . site to a level that it determines “public health” and 

the “public interest” require. (2) The court will reconsider the matter 

of “indirect costs,” explaining, as we have set forth above, any denial 

of those costs as a sanction. In all other respects the judgment of the 

district court is affirmed. 

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Judicial Writing Manual, Second Edition

Appendix E: Sample Brief Dissenting Opinions 

The following are examples of brief dissenting opinions.

The reasons why I am constrained to dissent may be briefly stated. 

The question whether an anti-takeover provision provides a “special protection” to debenture holders cannot be answered in the negative merely because the “Independent Directors” decided to waive 

their provisions and approve a particular transaction. These directors were explicitly empowered to act in this fashion by virtue of the 

fully disclosed terms of the provision. A significant function of an 

anti-takeover provision is to serve as a deterrent to hostile takeovers, 

including takeovers which would be contrary to the interests of both 

shareholders and debenture holders. One cannot, I believe, fairly 

characterize such a provision as being “worthless” to the debenture 

holders, even though as a matter of Delaware law directors owe a fiduciary duty solely to shareholders. The anti-takeover provision was 

therefore a “special protection” to debenture holders, albeit a limited 

one. 

Federal securities laws do not impose an obligation to advise investors of the fundamentals of corporate governance. The disclosure 

required by the federal securities laws is not a “rite of confession or 

exercise in common law pleading. What is required is the disclosure 

of material objective factual matters.” Data Probe Acquisition Corp. v. 

Data Lab, Inc., 722 F.2d 1, 5–6 (2d Cir. 1983), cert. denied, 465 U.S. 

1052, 104 S. Ct. 1326, 79 L. Ed. 722 (1984). Especially is this so where, 

as here, the investor complainants are sophisticated financial institutions making major investments. The role of the federal securities 

laws is not to remedy all perceived injustices in securities transactions. Rather, as invoked in this case, it proscribes only the making of 

false and misleading statements or material omissions. 

Whether the Independent Directors breached an implied duty of 

good faith or otherwise acted contrary to their fiduciary obligations 

are matters of state law. Here, the federal claims were asserted only 

conditionally, the express condition being the failure of the state law 

claims. These state claims were properly dismissed by the court below 

for lack of pendent jurisdiction. 
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Judicial Writing Manual, Second Edition

Believing no valid federal claim to be present, I would affirm essentially for the reasons set forth in the Opinions of the Magistrate 

and District Court. 

* * *

In many respects this case represents good police work. It is clear, 

however, that defendants were of abnormally low intelligence and 

that Miranda warnings were not given. Even though appellants had 

not been taken in custody, it is also true they had not been furnished 

counsel or waived same. As the district court held, the government 

agents should have taken further precautions to ensure that [defendants] understood the situation and their rights. See Henry v. Dees,

658 F.2d 406, 411 (5th Cir. 1981).
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Judicial Writing Manual, Second Edition

Appendix F: Sample Brief Concurring Opinions

The following are examples of brief, narrowly written concurring 

opinions.

I concur with most of Judge _____’s thoughtful discussion of the 

issues in this case. I am fully in accord with Part IIA and C and the 

rationale with respect to the claims against [defendant] and the state 

law claims. I agree also with the statement in Part IIB that “[d]ue process concerns are clearly not implicated in [defendants’] actions with 

regard to the letter from . . . .” I agree further that there is “no support 

. . . for plaintiff ’s fanciful conspiracy theory.” 

I find no necessity, however, to adopt the statement quoted from 

Rice v. Ohio Department of Transportation, 887 F.2d 716, 719 (6th Cir. 

1989), which may be interpreted to mean that the doctrine of Will v. 

Michigan Department of State Police, 491 U.S. 58 (1989), somehow 

bars suits under § 1983 against state officials when those officials are 

being sued in their individual capacities. I do not view Will as barring 

§ 1983 suits against state officials whenever the suits concern actions 

taken in their individual capacities. Instead, I believe that Will bars 

suits against state officials only when those officials are sued in their 

official capacities. 

Accordingly, I would affirm the decision of the district court that 

under the facts of this case defendants . . . enjoy qualified immunity. 

* * *

I concur with the results reached by Judge _____ and in his opinion except as to his analysis of the First Amendment issue. For the 

reasons stated in my concurring opinion in [citation], I believe the 

. . . regulations are permissible time, place, and manner restrictions on 

speech in the [plaintiff ’s] profession.
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District 

of New York 

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of 

Illinois 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of 

Georgia 

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit 

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas 

Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which 

also includes the director of the Administrative Office of the U.S. Courts and seven 

judges elected by the Judicial Conference. 

 The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges 

and court staff, including video programs, publications, curriculum packages for 

in-court training, and Web-based programs and resources. The Research Division 

examines and evaluates current and alternative federal court practices and policies. 

This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with 

two units of the Director’s Office—the Information Technology Office and the Communications Policy & Design Office—in using print, broadcast, and on-line media 

to deliver education and training and to disseminate the results of Center research. 

The Federal Judicial History Office helps courts and others study and preserve federal 

judicial history. The International Judicial Relations Office provides information to 

judicial and legal officials from foreign countries and assesses how to inform federal 

judicial personnel of developments in international law and other court systems that 

may affect their work.