Resources
Fostering Public Trust through Judicial Opinion Writing
by Nancy A. Wanderer

“Slamming Judges for Political Gain” shouts the headline in the December 5, 2007 edition of The Seattle Times.  “Here we go again,” begins the article, which recounts Republican Mitt Romney’s attack on Massachusetts Superior Court Judge Kathe M. Tuttman after a controversy erupted over a single decision.  Romney called for Judge Tuttman’s resignation after a defendant she released from custody left town and allegedly murdered two people in Washington State.  Verbal attacks on judges have been frequent in recent years, and not just from politicians running for office.  The term “activist judges” has entered the mainstream, offering a convenient rationale for criticizing judicial opinions on topics ranging from same-sex marriage to eminent domain.

“OPINION WRITING IN CONTROVERSIAL CASES”: A NEW COURSE FOR TRIAL AND APPELLATE JUDGES"

In an increasingly polarized society, judicial accountability must include the responsibility to help those untrained in the law to better understand the basic concepts and principles involved in judicial decisions. The first paragraph of the preamble to the Code of Judicial Conduct states that “judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.”  The National Center for State Courts is offering a new online course on opinion writing for both trial and appellate judges that seeks to address the growing concern of public discontent with our judicial system.

The course – “Opinion Writing in Controversial Cases” -- goes beyond the usual emphasis on form and substance and focuses specifically on how to write opinions that foster trust and confidence in our judicial system.  The course was developed in collaboration with an advisory committee of Missouri judges and their State Judicial Educator. Its distinctive approach helps judges learn how to write opinions that demonstrate respect for the parties involved, communicate clearly the role of the court and its limitations, and provide reasons for a potentially unpopular decision.  It is designed for both trial and appellate judges because all judges need to facilitate understanding and voluntary compliance though their opinions - especially in controversial cases. 

“Opinion Writing in Controversial Cases” provides judges an excellent opportunity to reflect on ways they can foster public trust and confidence in our legal system by incorporating the concepts into their own opinions.  They also gain practical experience in applying this concepts through guided exercises and individualized feedback from two faculty members, one an experienced judge and the other a law school professor with expertise in judicial opinion writing. 

COURSE OBJECTIVES AND STRUCTURE

The course is designed to enhance each participant’s ability to

• Craft opinions and orders that help the parties and others interested in case outcomes to better understand the role of the court in the case;
• Convey the reasons for and limitation on the role of the court in making decisions in such cases; and

• Preserve or enhance the public’s trust and confidence in the state judicial branch through the writing or pronouncement of their decisions.

The course is composed of four parts:

• Part I is a video discussion by Missouri Chief Justice Laura Denvir Stith and Missouri Court of Appeals Judge Ronald Hollinger on the changing context in which judicial opinions are being reported in the media and feed into economic, political, and social controversies.

• Part II is a one-hour video lecture by Professor Nancy A. Wanderer, Director of the Legal Research and Writing Program at the University of Maine School of Law, proposing an approach to writing opinions and orders in controversial cases. Sample a section of Professor Wanderer’s video lecture here (WMV).

• Part III consists of a web-based seminar (a “Webinar”) led by faculty members, Professor Wanderer and retired Superior Court of Washington Judge Robert H. Alsdorf that builds on Part II concepts and leads participants through an interactive critique of judicial opinions issued in selected cases, including the Supreme Court’s controversial Kelo decision.
• Part IV provides participants an opportunity to practice applying some of the course’s techniques to samples of their own writing and receive individualized faculty feedback on their submissions.

VALUES UNDERLYING THE COURSE 

1.  The Importance of Reasoned Opinions 
Reasoned opinions promote fairness and effectiveness of adjudication and guide participants through the highly complex process of adjudication by explaining the role of the court and its limitations.  The reasoned opinion ensures that the court has reached the proper resolution and legitimizes any departures from apparently established law. 

2.  The Importance of Demonstrating Respect
Showing respect for the people affected by judicial rulings is essential.  By demonstrating respect at every stage of the process, including the opinion-writing stage, courts encourage respect for the judicial system and widespread acceptance of their opinions.

3.  The Need for Clear Communication
The goal of opinion writing is clear communication.  If judges make every choice regarding the tone and content of opinions with an eye toward communicating with the audiences for those opinions, the purposes of our judicial system will be met.  Even highly controversial opinions will be viewed as more acceptable if the public actually understands the legal underpinnings for those opinions and how they apply to the case at hand.

GROWING AUDIENCES FOR JUDICIAL OPINIONS:  WHO ARE THEY AND WHAT DO THEY NEED?

Another focus of the course is the expanding audience for judicial decisions.  The most obvious audiences for judicial decisions are typically those most immediately concerned with the decision:  the litigants and their lawyers.  But there are other important audiences as well:

• The trial court whose judgment is being affirmed or reversed an appellate court needs to understand the nature of the ruling and what must be done on remand.
• Other courts need to understand the holding and rationale for the opinion and what should happen in future cases. 
• The media and general public may also be vitally interested in the outcome of the case, especially if it deals with controversial subject matter.
• Members of the bar, legal scholars, law students, and public officials have similar needs as well. 

All of these audiences must be able to see that the court has understood the context of the controversy, listened carefully to both sides, especially the losing side, and reached a principled decision based on the law.

KELO v. NEW LONDON:  A FAILURE OF COMMUNICATION

When courts in their opinions fail to consider and address the needs of their audiences, voluntary compliance evaporates, making way for passive and active resistance to the rule of law.  A prime example of this occurred in 2005, when the United States Supreme Court decided in Kelo v. New London (PDF) that citizens’ homes could be taken by the government for private development under the Fifth Amendment’s concept of eminent domain.  The decision led to an immediate backlash, with news agencies reporting that cities could now bulldoze residences to make way for shopping malls and hotels to generate revenue. Anti-government demonstrations and folk songs sprang up (WMV). A proposal even surfaced that the town of Weare, New Hampshire, should purchase the family home of Justice Souter through an eminent domain action in order to construct the “Lost Liberty Hotel” on the property.

The Kelo opinion was chosen as the case to feature in this course because the judges on the Advisory Committee themselves experienced how much discussion is generated by the decision.  Participants in the course look at the opinion in depth in Part II and Part III.  In Part II, they become familiar with its content, particularly in comparison with another case, the Supreme Court of Canada’s well-received opinion on the secession of Quebec; in Part III, they discuss ways the opinion could have been improved in an interactive Webinar format with Prof. Wanderer, Judge Alsdorf, and the other participants in the course.

STATE v. KING:  A FAR BETTER WAY

Although it should be sufficient based on existing law and precedent for a court to reach the correct result, often more is needed.  This is especially true when the decision seems likely to cause extreme discontent or widespread controversy, like the Kelo opinion.  In such cases, the court must take extra measures to make the rendering of judgment more understandable, acceptable, and even therapeutic for those who particularly care about the outcome of the case.

A very good example would be Minnesota Judge Kevin Burke’s opinion in State v. King (PDF), described on the Minnesota Lawyer Blog as “eloquent.”  All judges would like their opinions to be recognized as well-reasoned decisions like Judge Burke’s.  The decision dealt with the much publicized prosecution of Zachary King, who was charged with second-degree manslaughter after his child, Zach Jr., was killed by the family’s pet pit bull. 

Judge Burke began the opinion by stating, “What happened in this case was a horrific tragedy,” and concluded in a “meticulously crafted opinion” that although King should not be criminally prosecuted, “Given what happened in this case there is no victor.  A child is dead, his siblings and parents are traumatized, and a lot of people who never knew these people are bewildered and wonder how can this happen?  Who is responsible?” 

Judge Burke recognized the sensitivities in the case and took the time to acknowledge them, even though his primary obligation was simply to reach the correct decision based on the applicable law.  Although he had not taken the NCSC course, “Opinion Writing in Controversial Cases,” he clearly understood the tenets of the course and provides an inspiring example of judicial accountability.   
For more information on “Opinion Writing in Controversial Cases,” please contact Denise Dancy, NCSC Research Associate at or 757.259.1593.

Professor Nancy Wanderer is the Director of the Legal Research and Writing Program at the University of Maine School of Law and the author of articles and book chapters on opinion writing, appellate practice, legal citation, and electronic communications.  She has provided training in effective legal writing to judges, law clerks, and practitioners, and has consulted with the National Center for State Courts.  Prof. Wanderer, a graduate of Wellesley College and the University of Maine School of Law, has been appointed to numerous boards and commissions, including the Maine Commission on Gender, Justice, and the Courts and the Defense Advisory Committee on Women in the Services.  She clerked for the Maine Supreme Judicial Court and practiced in both the private and public sectors before returning to academia.

Return to Top

Copyright 1999-2008, National Association of State Judicial Educators
Contact Web Developer

This Website is updated quarterly by NASJE.
The opinions expressed herein do not necessarily reflect the views of the National Association of State Judicial Educators.