NAWCJ

A SWIM UPSTREAM: AN ARGUMENT FOR TAKING INFORMALITY AND PERSONALITY OUT OF JUDICIAL DECISIONS



by Honorable David B. Torrey
Workers’ Compensation Judge
Pittsburgh, PA

Nina Varsava, Professional Irresponsibility and Judicial Opinions, 59 Houston Law Review ___ (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.

At our annual NAWCJ College, in discussions of decision-writing, we hear a frequent admonition: write up the adjudication straight, and abstain from the temptation to include jokes, puns, anecdotes, aphorisms, or anything non-business-like. To venture into such informality can be insulting to the parties (especially the leveraged class of workers’ compensation litigants); exhibit bias, actual or in appearance; and needlessly invite appeals.  Why risk reversal, remand, or reassignment for a moment of fun?

My own additional quip on this piece of advice has been, “leave such devices to the appellate courts.”

In a new article, the author, a law professor, shoots down this well-intentioned dictum.

Indeed, Professor Nina Varsava, with Professional Irresponsibility and Judicial Opinions, has trained her gunsights on the current appellate court fad of “embracing narrative and drama in the judicial process.” This approach to judicial writing includes, but far transcends, the hazardous quip or quote.  It is, is instead reflected by the style that Justice Gorsuch has made famous – for example, beginning an insurance coverage dispute appellate opinion like this: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger.  Tyler Hodges [plaintiff] found that out when [he] plummet[ed] down an elevator shaft ….”

In Varsava’s opinion, it is not professional in an appellate (or trial) opinion to tell stories in this fashion, as if, like John Steinbeck or Steven King, the author is seeking to entertain an audience. She rejects the dominant gospel that appellate opinions need a “strong dramatic arc.”  No, she admonishes, appellate opinions are no place for creative writing.  The appellate judge, she argues, need not supply facts (like the above, notably) that are not relevant to the critical analysis; no utility exists for such a gesture.

Varsava proceeds to detail her reasons (see below) but, she notes throughout, most people outside the legal community don’t read opinions anyway.  The audience is not the general public but, instead, “someone who finds rigorous, impartial legal reasoning to be convincing.” Her other pervasive theme is that legislation is not written in an effort to entertain, or persuade, so why should the court opinions interpreting such legislation?

In any event, I counted five reasons for her advocacy against what I will call the “story-telling” approach.

    1. Story-telling can show lack of impartiality and a sense of judicial arrogance. An “engaging and compelling narration,” Varsava argues, can interfere with the duty of impartiality. After all, is the story-teller going to carefully recite each side’s version of the story? Probably not. The losing side receiving a one-sided short-story in the mail (or via the computer) is going to be appalled.  The losing side will likely feel that his or her side of the dispute was not meaningfully heard, generating distrust and disrespect for the system.  Also, informal decision-making that stresses story-telling can be an insult to the losing party’s dignity. This is so because the litigants in story-telling “are cast as cookie-cutter characters.”
    2. Story-telling can compromise legal clarity and transparency.  Telling a story, Varsava complains, may have to make the parties “into good guys and bad guys,” when the real litigation does not lend itself to such a dichotomy.  “Typecasting and strong narrative arcs,” she asserts, “in opinions are prone to be deceptive, since litigants and the disputes in which they are involved are unlikely to fit neatly into stock character types and plot lines.”
    3. Story-telling is needless: As foreshadowed above, the author asserts (contrary to what many argue) that the judge’s job is not to persuade through a crafty fable but, instead, to identify both sides of the argument, and then apply the law dispassionately. The judge’s job is to explain, instruct, and provide guidance for the future. Notably, the author endorses the idea of “framing arguments,” where the court initially explains both sides of the argument, even reproducing exact quotes of the parties’ competing arguments. In this way, “courts would be compelled to include the perspectives and interpretations of both the winning and losing sides in their opinions, which would enhance the participation of the parties and might have transparency benefits as well, helping to ensure that the strongest arguments on each side are revealed.”
    4. Storytelling undermines the rule of law. Ouch! Here the author argues, “When judges take advantage of or embellish personal details about litigants to enhance the narrative appeal of their opinions or make their conclusion more emotionally satisfying, they undermine the rule of law.”
    5. Story-telling feeds into the “judges as celebrity” craze. Judges, the author asserts, should not be celebrities. They were elected or appointed not to voice personal opinions and gain glamour and applause but, instead, to apply the law. Meanwhile, informal writing (for example, using contractions), the inclusion of wise-cracks, and the like, may make the judge a celebrity to some but can also backfire, “suggest[ing] an inconstant or whimsical judiciary.” She concludes, not only should judges avoid feeding into the culture of narcissism (everyone’s a star!), but appellate opinions should all be per curiam.

Professor Varsava, in her dour and imperious argument for discipline and restraint, is swimming against the tide – and she knows it.  A change as she promotes would indeed “require a fundamental shift in legal culture.” As she well documents, an overwhelming advocacy exists for judges not to publish boring, dry decisions but, instead, to adopt the story-telling approach of the advocates who appear before them. It is that arguments that perhaps irritates Varsava the most: the lawyers are expected to tell stories and persuade the court; the court is supposed to act fairly and respond dispassionately.

How to address the problem? Varsava suggests intra-court protocols, enforcement of Rules of Judicial Conduct against the appearance of bias, and even legislation to dissuade judges from turning decisions into literary projects.

Though the author is swimming against the tide, Varsava does note that an advocacy for playing it straight exists. Indeed, she quotes from the Federal Judicial Center’s opinion-writing handbook, which cautions against informality.  She is also able to identify at least a few cautionary tales where judges adopted the tell-the-story narrative approach and were publicly criticized. This advocacy is long-standing, dating at least from the 1950s, and she quotes Prosser, of tort scholarship fame, for the proposition that “the bench is not an appropriate place for unseemly levity.”  This is so because “the litigant has vital interests at stake….  His entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig.”

The author’s footnotes are a cornucopia of references to the literature in this area.  When the NAWCJ College next tackles this aspect of decision-writing, this excellent new article can be the researcher’s principal reference.