Any article with “Shakespeare and SpongeBob” in the headline will get my attention. And, indeed, I enjoyed this article from the New York Times on Staten Island Civil Court Judge Philip S. Straniere, who, with a little help from his literary friends, achieves his goal of writing decisions that the litigants can understand. (The article’s original eyecatching headline has been changed to a less colorful one that omits the literary and cartoon references.)
Judge Straniere numbers not only the Bard and residents of Bikini Bottom among his friends, but also L. Frank Baum, Mario Puzo, Dr. Seuss, Oscar Hammerstein, Meredith Wilson, MAD magazine, and many others, all of which he’s cited in opinions he’s written.
Lawyers are often criticized as a profession for being poor writers. I don’t think that’s entirely fair—there are many lawyers who are very fine writers, and many fine writers who trained in the law—but it is true that many statutes, administrative regulations, court opinions, and legal articles, all of which are, admittedly, written by lawyers, rival Ambien as cures for insomnia. I haven’t read any of Judge Straniere’s opinions, but I’ll bet they’re delightful.
Reading about the judge’s citation of nonlegal sources in order to bolster the understandability of his opinions to his audience–the litigants–made me think about another side of legal writing: the briefs that lawyers submit to their audience, that is, judges.
Nonlawyers may not generally know that there are two types of opinions issued by many intermediate reviewing courts: precedential and nonprecedential. They’re also referred to as “published” and “unpublished,” though that’s no longer generally true. In Illinois, at least, all opinions, state and federal, are published in some fashion, if only on the Internet. The two types are also referred to as “opinions,” which are published and precedential, and “orders,” which are “unpublished” and not precedential. The number of states that continue to make this distinction is diminishing, Ottawa (IL) appellate lawyer Michael T. Reagan, who’s studied and testified on the issue, tells me. The federal courts also continue to distinguish them.
In those jurisdictions that continue to make the distinction, it’s important because precedential opinions are legal authority and may be cited in briefs filed with the court. Opinions that the authoring courts or judges designate as nonprecedential are often subject to court rules that actually prohibit their citation, except under certain narrowly defined circumstances. In Illinois, the court rule applicable to those opinions is Supreme Court Rule 23. In the federal courts, the applicable rule is Federal Rule of Appellate Procedure 32.1. Federal district courts may adopt their own rules to some degree on whether and to what extent to allow the citation of nonprecedential opinions issued before January 1, 2007.
I’ve written a number of articles for the Illinois Bar Journal on court rules regarding nonprecedential opinions. The most recent addressed the Illinois Supreme Court’s amendment of SCR 23, which was effective on the first of this year.
Whenever I talk to lawyers who practice before courts of review, they wonder why it should be OK, and certainly not prohibited by any court rule, to cite the words of Shakespeare, SpongeBob, the Talmud, or the person they sat next to on the bus that morning, but not OK and, in fact, prohibited by court rule, to cite the words of the very court before which they’re appearing if those words happened to appear in an opinion designated nonprecedential.
Though the question is rhetorical, it’s a good one. The answers I’ve heard from proponents of maintaining the distinction include that nonprecedential opinions add nothing to the law (which others say isn’t so), that they’re not as well written or of as high quality as precedential opinions (an assertion that surprises me), and that citing them is never, or hardly ever, persuasive–which may be so, but then again, Shakespeare and SpongeBob probably won’t tip the scales, either.
Lawyers and judges, what do you think? Can anyone provide other reasons for continuing to make the distinction between precedential and nonprecedential opinions? Do the courts of other countries make this distinction?