Judicial Writing for Ill. App. Ct. Justices & Staff (PPT 10/19/21)

Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

October 19, 2021

Judicial Writing for Ill. App. Ct. Justices & Staff(PPT 10/19/21)Gerald Lebovits

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JUDICIAL OPINION WRITING2021 JOINT CONFERENCE OF THE APPELLATE COURT

OCTOBER 19, 2021

Hon. Gerald LebovitsActing Justice, New York State Supreme Court, New York County

Adjunct Professor, Columbia, Fordham & NYU Law Schools

First DistrictSecond District Third District

Illinois Supreme Court Fifth DistrictFourth District

Illinois Supreme Court and the Appellate Court

HOW TO FIND SUPREME COURT AND APPELLATE COURT DECISIONS

click here

https://www.illinoiscourts.gov/top-level-opinions/

Justice Michael Hyman Justice Bertina LampkinJerrod Williams

Senior Appellate Court Law

Clerk

I’d also like to thank Hannah Beder,

Supervising Training Manager, Judicial Education Division

Justice Kathryn Zenoff

Judging on Zoom

LEGAL WRITING IN THE TIME OF COVID-19

VIRTUAL COURTS = PAPERLESS COURTSE-DOCUMENTS AND E-FILING

● Advantages of e-filing:

○ Ability of lawyers to file materials at any hour.

○ Instant accessibility.

○ Unlikelihood that documents will be destroyed, lost, or

misfiled.

● Caveat of e-filing:

○ Broadcasting easily accessible private information

increases identity theft. E-filers must be aware of the

information they upload.

○ The Federal Rules of Civil Procedure and other state rules

limit disclosing private information.

VIRTUAL COURTS = PAPERLESS COURTSE-DOCUMENTS AND E-FILING

● Accommodate your readers by making your e-documents easy to read.

○ Choose an easy-to-read font like Times New Roman or Century.

○ Consider the reader’s navigational needs. Use bookmarks (quick-access

addresses), hyperlinks (clickable/direct links), thumbnails (small pictures

useful for organization), etc.

○ Simplify your message.

○ Put the most important content at the beginning.

○ Write concisely and succinctly.

○ Edit ruthlessly.

○ Have ample white space.

○ Use headings, bullet points, numerical lists.

● Create context.

● Add graphs, maps, photos, etc.

● Courts prefer PDF to Word or WordPerfect documents due to the security needs

of legal documents.

•Take legal-writing CLEs.

Anyone with a logical mind can be a good legal writer

•Preferably not online.

•Read a lot.

•Write.

•Have an elbow book.

•Be edited. Editors aren’t subversives.

•Edit others.

•Write about legal writing.

•Teach legal writing.

WHY IS LEGAL WRITING SO DIFFICULT?

1. Law school.

Justice William J. Brennan Jr.

2. Multitasking while writing.3. Legal matters are difficult.

4. Legal writing requires clarity and

precision.

5. Writing is thinking at its hardest.

- And it’s even harder for readers.

6. No excuses for poor legal writing.

See Mean Girls to understand this meme


Source: Collection of the Supreme Court of the United States

•Poor Role Models.


•Language of the Law.


●HISTORY.

PLAIN ENGLISH

● Legalisms:

Harder to quit than smoking.

● What word can you remove?

● Archaic expressions.

● Foreign words (Latin, French, etc.).

● Sesquipedality.

● Count syllables.

● Don’t write it if you wouldn’t say it (e.g. “prior to,” “said,” “such”).

● Write for an intelligent eighth grader.

“I enclose herewith a copy of my brief.”

“I enclose herewith a copy of my brief.”

● But be formal: No clichés, colloquialisms, jargon, or contractions.

WORDS AND PHRASES TO

AVOID ACCORDING TO THE ILLINOIS ADMINISTRATIVE

CODE AND ILLINOIS REGISTER STYLE MANUAL

Source: Illinois Administrative Code and Illinois Register Style Manual 50-52 (June 2004)

PLAIN ENGLISH

● Undefined and excessive abbreviations and acronyms.

● The Plaintiff demanded ten dollars ($10.00) in Small Claims Court.

● The Defendant (the “Defendant”), Mr. Smith (“Mr. Smith”), filed a motion (the “Motion”).

● Excessive uppercasing: The Lawyer filed a Summary Judgment Motion in Court.

EDITING/GRAMMAR-CHECKING SITES

● Grammarly.

● Hemingway.

● PaperRater.

● ProWritingAid.

● Reverso.

● Sapling.

● WordRake.

FLESCH-KINCAID ON WORDREADABILITY STATISTICS

WORD 2003-2007:

“Tools” → “Spelling and Grammar“ → “Options” → “Show readability statistics”

WORD 2014:

“Microsoft Office” → “Word Options” → “Proofing” → Select “Check grammar

with spelling” → Under “When correcting grammar in Word,” select “Show readability statistics” → Select “OK” Hit F7

MACOS:

“Preferences” → ”Spelling and Grammar” → Select ”Check grammar with spelling check” → Select “Show readability statistics check”

WRITING STAGE

WHEN TO START WRITING

● You don’t have to know everything before you start.

● Once you start, you must have sitzfleisch.

● No clear dividing line separates the pre-writing and writing stages.

● The first draft is the least important part of your writing. Don’t worry about what it looks

like.

○ You might start writing down your ideas after brainstorming and

taking research notes even before outlining.

○ The important thing is that you start. The earlier you start writing, the less likely you’ll

be to end up with a bad draft, and the more time you’ll have to revise.

LARGE-SCALE ORGANIZATION

Read your entire document once or twice. Then answer these questions:

● Does the introduction include a roadmap telling the reader what will be covered and in what order?

● Does each paragraph make only one point?

● Is each concept discussed once and in one place?

● Organize thoughts into sections. Each section should address one large issue. Group thoughts together.

● Do transitions connect ideas, people, places, things, and time? Transitions establish logical connections between sentences, paragraphs, and sections.

● Does the concluding paragraph reach the desired destination? The concluding, or thesis, paragraph should summarize the document’s main points, suggest results, evoke images, or call for action.

SMALL-SCALE ORGANIZATION

● Small-scale organization focuses on organizing ideas within paragraphs.

● Paragraphs should begin with a topic sentence or a transition sentence, which is a sentence that connects one paragraph to the next. Each paragraph must maintain one perspective.

● The topic sentence is to the paragraph what the lead, or roadmap, is to the document. Every sentence after the topic sentence should relate to the paragraph’s focus.

● A thesis sentence should come at the end of the paragraph.

○ The thesis sentence should answer the question the topic sentence posed. If the topic sentence and thesis sentence were the only parts of the paragraph, the reader should still understand the writer’s point.

○ The thesis sentence should also lead the reader into the next paragraph.

● Every sentence must relate to the sentence that precedes and follows it.

● Go from short to long, old to new, simple to complex, ending with power.

HOW LONG SHOULD A SENTENCE BE?

● If you’re a prosecutor, 25 to life.

● How long should a paragraph be?

● Variety is the spice of life.

● Breaking up is hard to do.● Chop, slice, and dice.

OTHER REVISION TIPS

● Write for your reader, not yourself.

● Respect your reader.

● Paragraph: One large thought. Sentence: One small thought.

● Use mostly simple, declarative sentences.

● Check your formatting, grammar, and spelling.

● Avoid lengthy quotations and string citing.

● Write for the ear, not for the eye.

● Read your writing out loud when checking for mistakes.

● Edit on a hard copy, not on the computer.

● Use an editor.

● C&S work-up.

● Text-to-Speech

CONTROVERSIES

(AND HOW TO RESOLVE THEM)

CONTROVERSIES: SERIAL COMMA

Yesterday, the Chicago Police Department arrested five criminals

three burglars and two robbers.

How many criminals did the Chicago P.D. arrest?


Yesterday, the Chicago Police Department arrested five criminals: three burglars and two robbers.


Answer: Five


Yesterday, the Chicago Police Department arrested five criminals,

three burglars, and two robbers.


Answer: Ten

CONTROVERSIES: HYPHENS

In my pocket are ten dollar bills.

How much money do I have?

CONTROVERSIES

● PREPOSITIONS. ● SPLIT INFINITIVES.

● THAT/WHICH.

● INNIE OR OUTIE?

● BEGINNING SENTENCES WITH “AND”

OR “BUT.”● THE CONJUNCTIVE ADVERB.● SENTENCES. ● PARAGRAPHS. ● FOOTNOTES AND ENDNOTES.

PERSUASIVE-WRITING STYLE

WRITE CONCRETELY: SHOW, DON’T TELL.

BENJAMIN FRANKLINKING SOLOMON

ETHICS OF WRITING PERSUASIVELY

● Don’t exaggerate.

● Don’t write emotionally.

● Over-litigating is as bad as under-litigating.

● The Rambo lawyer.

● Be punchy and crisp.

○ At least be polite and clear: keep it civil.

● A dissent can’t be passed off as a holding.

● Lawyers may argue a position unsupported by the law to advocate that the

law be extended, limited, reversed, or changed.

● Cite what you use. Use what you cite.

● Use pinpoint citations.

○ Smith v. Jones, 99 F.3d 100, 101 (7th Cir. 2019), cert. denied, 101 S. Ct. 103

(2020).

ETHICS FOR JUDGES AND LAWYERS

MYTHS ABOUT LEGAL WRITING● Start early

● Edit late

● Revise.

● Knowing everything before you start.

● Writer’s block.

● Take breaks.

• You shouldn’t suffer from writer’s block. Your skills depend

more on logic than on creativity.

• But if you do, don’t panic. Writer’s block is normal.

• Some distance from the topic may help you to gain perspective by finding some distance from the topic.

● Write in a comfortable setting

“I MAJORED IN

INCOMPLETES!”

ORGANIZATION

● Say it once, all in one place.

● Organization

● Large-scale: thesis paragraphs (the roadmap to the document)

● Small-scale:

● Topic sentences (the roadmap to the paragraph)

● Thesis sentences (answer the question the topic sentence posed)

● Use headings and subheadings.

QUOTING

● Block quotations.

● Lead-ins.

● Alterations [ ].

● Omissions . . . .

● Copy-and-paste

● On Word: Copy, home page, paste, paste special, unformatted text.

● “Quote me as saying I was misquoted.” Groucho Marx.

CLARITY

• More important than concision.

• Give the foundation: Introduce before you explain.

• State the rule before the exception.

• Give the exception only if relevant.

• Raise the issue before answering.

• Answer before explaining.

• State the point before the details.

• Write directly, not indirectly.

• Don’t generalize.

MODIFIERS

● Keep your modifiers next to the words they modify.

(“Don’t go to a lawyer with legal problems.”)

● Squinting modifiers: Eliminate them by repositioning the

modifier, rewriting the sentence, or inserting a comma.

● Where does “only” go: “The prosecutor wanted to cross

examine the defendant.”

● Dangling modifiers: word or phrase that modify the wrong phrase or describes something not in the sentence. The

solution is to write in the active voice. Identify who is doing

what to whom—subject, verb, object—and your modifiers

won’t dangle.● Example: “Last night, I shot an elephant in my pajamas.

How it got into my pajamas I’ll never know.”

DOCUMENT DESIGN

● Follow court rules.

● Word count and page limits.

● White space.

● Spacing between sentences and citations.

● Single space or double space?

● Right-ragged margins.

● Font: Prefer “Century” to “Times New Roman,” “Courier,”

or “Calibri”(the default in Word).

DOCUMENT DESIGN, CONT.

● Use a reasonable font size:

● 12-point type is a minimum.

● 14-point type is required by many courts.

● Margins (allow plenty of white space).

● Italicize case names. Red v. Green OR Red v. Green?

● THIS SENTENCE IS DIFFICULT TO READ BECAUSE IT IS

WRITTEN IN ALL CAPS.

AVOID ADVERBIAL EXCESSES

● Avoid absolutes

e.g.: “always” and “never”

● Avoid adverbial excesses

e.g.: “clearly” and “obviously”

● Don’t qualify absolutes.

e.g.: “In order to form a more

perfect union . . . .”

AVOID COWARDLY QUALIFIERS

● When writing a review, state your opinion firmly and clearly.

● Cowardly qualifiers (doubtful, hedged, and misleading phrases and words,

e.g., “basically,” “nearly,” and “somewhat”) imply insecurity in and unsurety

of opinion. Eliminate them.

● Eliminate unnecessary qualifiers (e.g.: conditional verbs “could” and “might”;

adverbs “nearly,” “somewhat,” “possibly,” and “probably”; and phrases like “It seems to me,” which weaken your message.

● Eliminate ambiguous and imprecise phrases (e.g.: “at or near,” “on or about,”

and “on or before”).

● These expressions should be used only when the exact places or times are

unknown.

● When discussing an exception to a rule rather than the rule, use “generally,”

“typically,” and “usually.”

PRECISION AND CONCISION

● Fresh fish sold here today.● Fresh fish sold here today.



● “Kill your darlings” (Ernest Hemingway).

● Eliminate lines at the end of the paragraphs.

● Delete compound prepositions (e.g.: “with reference to”).

● Delete “It is,” “It was,” “There are,” “There is,” “There was” at the beginning

of sentences.

○ E.g.: There are only two things wrong with legal writing: style and

substance

→ Only two things are wrong with legal writing: style and substance.

● Don’t use doubles (e.g.: “advance planning”).

● Make your citations speak.

● Omit unnecessary details.

● Speak simply (e.g.: change “ascertain” to “learn,” “commence” to “start”).

● Use possessives.

● Use pro-verbs (e.g.: “do” and “do so”).

CONCISION

● Delete of after all and both, except when followed by

a pronoun.

● Delete of after alongside, inside, off, and outside.

● Delete of in dates and years.

● May of 2021?

● Revise sentences to remove of abstractions, such as

“factor of,” “kind of,” “matter of,” “sort of,” “state of,”

and “type of.”

● The word “of” is often unnecessary. Delete it.

THE SUPERFLUOUS OF

Source: Illinois Administrative Code and Illinois Register Style Manual, pp.53-54 (June 2004)

WORDS THAT ARE OFTEN CONFUSED

AVOID PASSIVE VOICE

● Active voice: The dog ate the cat.

● Marketing example.

● Single passive voice: The cat was eaten by the

dog.

● Double passive voice: The cat was eaten.

AVOID ELEGANT VARIATION

● There’s power and clarity in repetition.

● Don’t use different words for the same thing. Use different

words to mean different things.

● E.g.: The prosecutor wanted to indict the defendant.

That’s why the Assistant District Attorney [the prosecutor]

secured a grand jury true bill [indictment] against the

suspect who was arraigned [the defendant].

NOMINALIZATIONS: PREFER VERBS TO NOUNS

● The fine was far in excess of.

→ The fine was excessive/far exceeded.

● She has a tendency to.

→ She tends to.

● I have knowledge that.

→ I know that.

● Defendant committed a violation of.

→ Defendant violated.

● The judge was of the belief that he would be affirmed.

→ The judge believed.

● The intention of the parties was to reach an agreement.

→ The parties intended to agree.

● The district judge gave a description.

→ The district judge described.

● The court clerk has a preference for the submission of documents.

→ The court clerk prefers that documents be submitted.

AVOID METADISCOURSE

● Writing about writing.

● Delete anything that doesn’t add anything substantive to your writing.E.g.:

● “Having studied the case carefully and giving due consideration to all the evidence, the court respectfully concludes that . . . .”

● “Another aspect of the case that ought to be considered is that . . . .”

● “In dissent I propose to argue that . . . .”

● “In our opinion . . . .”

● “It is hornbook law that . . . .”

● “It is well settled that . . . .”

● “It is the court’s conclusion that . . . .”

● “The court recognizes that . . . .”

GENDER NEUTRALITY

● Use gender-neutral language lets you focus on substance over style.

● Writing must be colorless yet powerful.

● Don’t implying that one gender is the norm.

● Include people whose gender identity lies outside the gender binary.

THE PRONOUN “THEY”

● Avoid the inelegant “he or she,” “s/he,” or alternating between “he” and

“she.”

● If you want to use “they” or “their” as a pronoun, use a plural noun.

● E.g.: A gourmet likes her coffee black. (NOT: “A gourmet likes their coffee black.”)

● Plural forms allow you to replace “he” and “she” with “they.”

● E.g.: “Gourmets like their coffee black.”

● Or delete the antecedent. E.g.: “A gourmet likes black coffee.”

OTHER WAYS TO BE GENDER-NEUTRAL

● Eliminate the pronoun(s) altogether. (Note: This might require you to

rearrange the sentence.)

● Delete the suffixes “-man” or “-ess.,

● Repeat the noun.

● Use gender-neutral parallel language.

● E.g.: If you use “husband,” use “wife.”

● Use “one” as a pronoun.

● Use “person” instead of “man” or “woman.”

● Use second-person pronouns, like “you,” “your,” and “yours.”

WRITE IN THE POSITIVE

Fix the following:

1. Do not write in the negative.

→ Write in the positive.

1. This argument is not without support in the cases.

→ This argument is supported by the cases.

→ Cases support the argument.

1. We remand for proceedings not inconsistent with this opinion.

→ Consistent with this opinion.

WRITE IN THE POSITIVE

”

AVOID VAGUE REFERENTS

E.g.: it, they, him, her, them.

TENSE

● Present is present.

● Past is past:

○ “The suspect ran [not runs] from the police.”

● State current rules in the present tense.

● State current rules from past facts in the subjunctive tense:

○ “This court has held that . . . .”

● State permanent, immutable truths (truths that never change) in dependent clauses in the present tense:

○ “Albert Einstein proved that E equals mc².”

● State permanent, immutable truths in independent clauses in the past tense:

○ “Albany was where Chief Judge Kaye presided.”

OPINION WRITING

WHY WRITE AN OPINION?

• To make sure it writes.

• To constrain arbitrariness: Show that justice was done.

• To prove that the judges are doing their jobs.

• To explain why the case was decided the way it was.

• To explain why some facts are more important than other facts.

• To explain how the law applies to the facts.

• To consider both parties’ positions.

• To clarify for appeal.

• To prevent people from taking the law into their own hands.

WHO IS THE AUDIENCE?

Your writing style depends on the audience:

• Appellate opinions vs. trial opinions.

• Litigants (especially losing litigants), public, professionals, students, other judges.

• Different opinions: signed, memorandum, per curiam, en banc, affirmed without opinion, tentative, debutante.

TWO TYPES OF OPINIONS

PURE OPINION:• Opening.

• Impersonal, imperious, and formal tone.

• Extreme deference to precedent.

• Uses technical terms without definition.

• Doctrines and maxims.

• Heavily sub-segmented and footnoted.

PURE OPINION

“The Law is the true embodiment,

Of everything that’s excellent.

It has no kind of fault or flaw,

And I, my Lords, embody the

Law.”

Gilbert

and

Sullivan

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TWO TYPES OF OPINIONS

IMPURE OPINION:• Opening.

• Conversational.

• Candid.

• Flowing, not rigid.

• Content depends on what the writer believes a layperson

would consider important.

• Relaxed citation style.

Judge Posner

DANGERS OF WRITING IN THE PURE STYLE

• Over-citing.

• Over-relying on authority instead of reasoning.

• Over-using footnotes.

• Over-quoting with long quotations.

• Failing to connect fact to law.

• Using Latinisms and legalisms.

• Hiding reasoning behind pretentious language.

• Preventing the law from moving forward.

• Overly long opinion.

CONCISION

AND

SUCCINCTNESS

• Don’t be concise only to get the case off your

desk.

• Eliminate dicta.

• Avoid string citations.

• Limit what’s been stated in earlier case law.

• Eliminate over-particularization: if it’s not

necessary to understand the issues, leave it

out.

• Select facts carefully.

• Control sentence length.

DANGERS OF WRITING IN THE IMPURE STYLE

• Grammar: vagueness.

• Personal embellishments.

• Humor.

• “[T]he bench is not an appropriate place for unseemly levity.

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.” Dean Prosser.

• Would Brown v Board of Education have been different

if Chief Justice Earl Warren had been a punning prankster?

http://www.intaglio-fine-art.com/images/trf094.jpg

HUMOR

• No funny lawyers or judges.

• Just funny people who made

career mistakes.


• Poetic opinions.

• Going from bad to verse.


• Popular culture: literature, music, and movies.

• R-e-s-p-e-c-t:

• No sarcasm or scorn.

• Promote civility toward litigants, lawyers, witnesses,

courts, and other judges, both trial and appellate.

STRUCTURE

RULE 23. DISPOSITION OF CASES IN THE APPELLATE COURT

The decision of the Appellate Court may be expressed in one of the following forms: a full opinion, a

concise written order, or a summary order conforming to the provisions of this rule. All dispositive

opinions and orders shall contain the names of the judges who rendered the opinion or order.

(a) Opinions. A case may be disposed of by an opinion only when a majority of the panel deciding

the case determines that at least one of the following criteria is satisfied:

(1) the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of

law; or

(2) the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate

Court.

(b) Written Order. Cases which do not qualify for disposition by opinion may be disposed of by a

concise written order which shall succinctly state:

(1) in a separate introductory paragraph, a concise syllabus of the court’s holding(s) in the case;

(2) the germane facts;

(3) the issues and contentions of the parties when appropriate;

(4) the reasons for the decision; and

(5) the judgment of the court.

RULE 23. DISPOSITION OF CASES IN THE APPELLATE COURT,

CONT.

(c) Summary Order. In any case in which the panel unanimously determines that any one or more of

the following dispositive circumstances exist, the decision of the court may be made by summary

order. A summary order may be utilized when:

(1) the Appellate Court lacks jurisdiction;

(2) the disposition is clearly controlled by case law precedent, statute, or rules of court;

(3) the appeal is moot;

(4) the issues involve no more than an application of well-settled rules to recurring fact situations;

(5) the opinion or findings of fact and conclusions of law of the trial court or agency adequately

explain the decision;

(6) no error of law appears on the record;

(7) the trial court or agency did not abuse its discretion; or

(8) the record does not demonstrate that the decision of the trier of fact is against the manifest

weight of the evidence.


CONT.

When a summary order is issued it shall contain:

(i) a statement describing the nature of the case and the dispositive issues without a

discussion of the facts;

(ii) a citation to controlling precedent, if any; and

(iii) the judgment of the court and a citation to one or more of the criteria under this rule

which supports the judgment, e.g., “Affirmed in accordance with Supreme Court Rule

23(c)(1).”

The court may dispose of a case by summary order at any time after the case is docketed in

the Appellate Court. The disposition may provide for dismissal, affirmance, remand, reversal or

any combination thereof as appropriate to the case. A summary order may be entered after

a dispositive issue has been fully briefed, or if the issue has been raised by motion of a party or

by the court, sua sponte, after expiration of the time for filing a response to the motion or rule

to show cause issued by the court.


CONT.

(d) Captions. All opinions and orders entered under this rule shall bear a caption substantially

conforming to the requirements of Rule 330. Additionally, an opinion or order entered under

subpart (a) or (b) of this rule must clearly show the date of filing on its initial page.

(e) Effect of Orders.

(1) An order entered under subpart (b) or (c) of this rule is not precedential except to support

contentions of double jeopardy, res judicata, collateral estoppel or law of the case.

However, a nonprecedential order entered under subpart (b) of this rule on or after January

1, 2021, may be cited for persuasive purposes. When cited, a copy of the order shall be

furnished to all other counsel and the court.

(2) An order entered under subpart (b) of this rule must contain on its first page a notice in

substantially the following form:

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1).


CONT.

(f) Motions to Publish. If an appeal is disposed of by order, any party may move to have the

order published as an opinion. The motion shall set forth the reasons why the order satisfies

the criteria for disposition as an opinion and shall be filed within 21 days of the entry of the

order. The appellate court shall retain jurisdiction to grant or deny a timely filed motion to

publish irrespective of the filing of a petition for leave to appeal under Rule 315 and shall rule

on the motion to publish within 14 days of its filing, prior to disposition by the Supreme Court of

any petition for leave to appeal.

(g) Electronic Publication. In order to make available to the public all opinions and orders

entered under subparts (a) and (b) of this rule, the clerks of the Appellate Court shall transmit

an electronic copy of each opinion or order filed in his or her district to the webmaster of the

Illinois Supreme and Appellate Courts’ Web site on the day of filing. No opinion or order may

be posted to the Web site that does not substantially comply with the Style Manual for the

Supreme and Appellate Courts.

(h) Public-Domain Case DesignatorsAn opinion or order entered under subpart (a) or (b) of this rule must be assigned a public-

domain case designator and internal paragraph numbers, as set forth in the accompanying

administrative order.


CONT.

Committee Comment (January 1, 2021)

Rule 23(e), in its prior form, mandated that case dispositions under Rule 23(b) were

“not precedential and may not be cited by any party except to support contentions of

double jeopardy, res judicata, collateral estoppel or law of the case.” That provision of the

rule was enacted in 1994. At that time, there was an “avalanche of opinions” from our

appellate court (see comments of Chief Justice Bilandic), and many were simply “too

long” (see comments of Justice Heiple).

In 1994, electronic legal research databases were in their relative infant stages, and

the majority of legal research was done using books. Today, book-based legal research

has rapidly diminished, and with it, the justifications for the prior version of Rule 23(e) have

diminished. Text-searchable electronic legal research databases typically include both

published opinions and Rule 23(b) orders. The amended rule makes these cases available

to litigants for persuasion without expanding the body of binding precedent.

STRUCTURE OF AN OPINION (according to the Style Manual for

the Supreme and Appellate Courts

of Illinois)

• CAPTION:

• PROCEDURAL CASE INFORMATION

• PARTY INFORMATION

• CAUSE OF ACTION INFORMATION

• COURT PANEL INFORMATION

• BODY:

• HEADINGS

• FACTS

• ANALYSIS

• CONCLUSION/MANDATE

• JUDGMENT LINES

Source: Style Manual for the Supreme and Appellate Courts of Illinois, pp.1-17 (5th ed. 2017)

THE CAPTION:

PROCEDURAL

CASE

INFORMATION

Essential Elements

• Public-domain case designator.

• Name of the district and, in the First District, the division.

• Docket number in the appellate court.

• Date of filing of the appellate court opinion.

• Name of court or administrative agency from which review

was taken.

• Docket number of the cause in the court below or the

agency.

• Name of the trial judge or administrative law judge.

• Caption derived from the circuit court or administrative

agency proceeding.

Source: Style Manual for the Supreme and Appellate Courts of Illinois, p.1 (5th ed. 2017)

THE CAPTION:

PARTY

INFORMATION

• A party’s name is fully CAPITALIZED in the caption. Any titles, designations as a trustee or similar representative, or indications of a former name or current business name that follow are in title case.

• Appellate court opinions do NOT use the phrase “et al.” for party information, except in workers’ compensation cases.

• Use ONLY the abbreviations “Inc.,” “Ltd.,” “LLC,” in the name of a party. Do NOT abbreviate words such as “Company” or “Corporation, unless the abbreviation itself is part of the party’s actual name

• In the titles of direct appeals to the appellate court from administrative agencies, use the terms “Petitioner” and “Respondent.”

• In an appeal from a suit by or against the director of a state agency, or against the agency itself, the opinion caption should incorporate the statutorily established title set forth in the Departments of State Government Law.


THE CAPTION:

CAUSE OF

ACTION

INFORMATION

Examples of titles in specific causes:

• Adoption, custody, or support proceeding In re ADOPTION [or CUSTODY] OF JOHNNY D. (Bill Smith and Ann Smith, Petitioners-Appellees, v. Jane D., Respondent-Appellant).

• Consolidated cases (The lowest circuit court docket number is always listed first)JOHN BROWN, Plaintiff-Appellee, v. TOM WHITE, Defendant-Appellant.—JAMES BROWN, Plaintiff-Appellee, v. TIM WHITE, Defendant-Appellant.

• EstatesIn re ESTATE OF BOB WHITE, Deceased (Acme Company, Petitioner-Appellant, v. Vera White, Executor, Respondent-Appellee).

• In rem proceedings In re APPLICATION OF BOB WHITE, Pike County Collector (Bob White, Petitioner- Appellant, v. Bill Black, Sue Black, Tom White, Edna White, and All Unknown Owners of Parcel No. 133 in the Town of New Salem, Respondents-Appellees).


COURT PANEL

INFORMATION

• List the author of the lead opinion as well as the

other justices on the panel and their relative voting

positions.

• Full agreement precedes partial agreement, which

precedes disagreement.

E.g.

JUSTICE SMITH delivered the judgment of the court, with opinion. Justice Jones concurred in the judgment

and opinion.

Justice Wilson dissented from the judgment, without

opinion.

Source: Style Manual for the Supreme and Appellate Courts of Illinois, pp.8-10(5th ed. 2017)

THE BODY:

HEADINGS

• Immediately following the panel information is

either the word “OPINION” or, in the case of an

Rule 23(b) order, the word “ORDER.” In both cases,

the word should be printed in all-CAPITAL,

boldface type. This heading never gets a

paragraph number or seen with numerals or letters

preceding it.

• All other headings are centered and have a paragraph number in the left margin.

• If the italics are used for the heading, the numeral

or letter preceding the heading is not italic, nor are

any case names that would otherwise appear italicized—they become roman font to stand out

from the heading.

e.g. 1. Defendant’s Miranda Warning Claim

(Not 1. Defendant’s Miranda Warning Claim)


RULE 23(B)

SYLLABI

• Under Supreme Court Rule 23(b), all written

orders must contain a concise syllabus, that is,

a statement of the holding of the court.

• The syllabus should be placed in a separate introductory paragraph below the word

“ORDER” and should be set up as shown in the following example:

¶ 1 Held: Where evidence in first degree

murder case was sufficient to support giving

defendant’s proffered instruction on self-

defense, the trial court’s decision not to give the instruction was in error and defendant was

granted a new trial.

(See here for Rule 23)


https://casetext.com/rule/illinois-court-rules/illinois-supreme-court-rules/article-i-general-rules/rule-23-disposition-of-cases-in-the-appellate-court

THE BODY:

FACTS

• Stare Decisis → the precedential value of

the opinion will be reduced without an

adequate recounting of facts pertinent to the decision.

• Set forth those facts that led the lower

court to find an appeal controlled by a particular precedent.

• Minimize the importance of those facts

the reviewing court deems irrelevant to its decision.


THE BODY:

FACTS

• Accurate, precise, impartial.

• Don’t exaggerate or overstate.

• In chronological order; by theme if chronological order is confusing.

• By issue? By witness?

• Resolve conflicts in facts: Determine which testimony and witness is credible and why.

• Tell a story using theme, perspective, and organization.

• Bring the characters to life.

• Don’t rely on assumptions or innuendo.

• Include facts that favor the losing side.

• Avoid unnecessary facts and over-particularization: dates, people, places, and facts not used in the analysis section.

THE BODY:

PROCEDURE

General information that should be included:

(a) The names of the original plaintiffs and

defendants and of any party or parties later

added or dismissed from the case.

(b) The name of the county or agency from which

the appeal or petition for review was taken.

(c) The disposition of the case by the trial court

and/or administrative agency.

(d) Prior appeals in the same or related action and, in

supreme court opinions, the disposition of the

case in the appellate court along with the

appellate court citation.

(e) Indication of the party or parties appealing or

cross-appealing.

Source: Style Manual for the Supreme and Appellate Courts of Illinois 13 (5th ed. 2017)

THE BODY:

ANALYSIS

• Burden of proof.

• The appellate standard of review.

• Analyze issues by applying law to facts.

• State without hesitation the rule on which the decision depends.

• Narrow proposition.

• Workable rules: theoretically correct and easy

to apply.

• Explain why you’re choosing one line of

authority over another.

• Support rule by citing authorities, without citing an excessive number of cases (binding vs.

non-binding decisions; dissents and

concurrences).

THE BODY: CONCLUSION/MANDATE

• State the court’s holding clearly.

• Don’t repeat the facts or issues.

• Be brief and pointed.

• The opinion should set forth as a second,

separate paragraph within this section that

allows the Clerk of the court to prepare the

mandate


OPINION WRITING STYLE

• Decision writing is an exercise in persuasion.

• Modesty, humanity, and humility: Pomposity in opinion writing violates the holy function of justice.

• Tone and temperament: Judges should always maintain an impartial, neutral, and professional tone.

• Don’t advocate for a cause.

• Candor: Being too open and honest.

• No boilerplate language: They’re a quick, cheap substitute for independent thinking.

• Don’t copy lawyers’ briefs. Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719 (4th Cir. 1961).

• Don’t rely on lawyers’ citations.

• Clean-up phrases: Listing rejected claims doesn’t take much time and won’t detract from a good opinion.

USEFUL DOS AND DON’TS

DO:

• Address arguments, not parties or, worse, lawyers.

• Be honest and accurate in the facts

and law.

• Decide quickly.

• Appeal to the Legislature for

change, but only rarely.

USEFUL DOS AND

DON’TS

DON’T:

• Make personal attacks.

• Be defensive.

• Concur or dissent just to be cranky.

• Shame litigants, lawyers, witnesses, or judges.

• Plagiarize.

• Refer to yourself as “I” or “we” in a trial opinion.

• Use overdeveloped metaphors.

• Explain how hard you worked on the opinion.

• Cater to voyeurs.

• Impart private information.

• Use an opinion as a vehicle for self-congratulation.

STYLE AND CITING

To purchase the

Bluebook, click here.To purchase the ALWD,

click here.

To access the Style Manual

for the Illinois Supreme and

Appellate Courts, click here.

To purchase the Chicago

Manual of Style, click here.

https://www.legalbluebook.com/buy

https://www.alwd.org/about-guide

https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/7b9ea13e-26b6-4da7-b6de-68e4262133b2/supcrt_stylemanual.pdf

https://www.chicagomanualofstyle.org/help-tools/subscription.html

QUOTING TEXT: USE OF “[SIC]”

Italicized (exception to Bluebook Rule 5.2):

• The word “sic” is added to quoted text to indicate to the reader that a word was misspelled or erroneously used by the original speaker and not by the

one doing the quoting.

• It should be used sparingly. When required, add “[sic]” immediately after the misspelled or erroneously used word or phrase. Note that although the word

“sic” itself is italicized, the brackets around it are not: [sic], NOT [sic].

• In contrast, brackets surrounding an alteration that has been italicized for

emphasis (typically as part of a larger emphasized phrase) are themselves

italicized.


QUOTING TEXT: EMPHASIS

Position of the parenthetical (exception to Bluebook Rule 5.2(d)):

• Italic typeface shall be used to show emphasis in text, whether within or outside a

quote. If a quoted source uses boldface or underscore for emphasis, it is to be

converted to italic typeface, with no notation of typeface alteration necessary.

• When words in a quotation are italicized for emphasis by the author and are not

emphasized in the original quote, add “(Emphasis added.)” at the end of the quote

and before the citation.

• Where material that is being quoted contains emphasized words and the emphasis is

retained, add “(Emphasis in original.)” at the end of the matter quoted and before

the citation; use “(Emphasis omitted.)” if the emphasis is not retained.

• Where the parenthetical would more appropriately be placed with the main

sentence, such as with the use of a parenthetical citation, place the word

“emphasis” in lowercase, and delete the period.

E.g.

The court has held that fraud may be inferred (e.g., Szajna v. General Motors Corp., 115

Ill. 2d 294, 322 (1986) (fraud “may be inferred from the nature” (emphasis added)), but

this court cannot presume fraud here.


QUOTING TEXT: CITATIONS

Placement of the parenthetical, use of brackets (exception to Bluebook Rule 5.3(c)):

• To indicate the omission of a citation and any citation-related punctuation, replace the citation with “[citation]” if the omitted reference was a citation clause within a sentence. If the reference was to a citation sentence, use “[Citation.]” (capitalized with punctuation inside the brackets). Use “[citations]” or “[Citations.],” as appropriate, if more than one citation is omitted. A case citation and its accompanying related history or parenthetical explanation is only a single citation.

• Do NOT insert asterisks for an omitted citation alone; however, where asterisks reflect that both text and citations have been removed, there is no need for an additional bracketed notation that citations have been omitted.

• Where a citation has been inserted into quoted material or where a citation has been amended to fully represent a shortened citation, appropriate punctuation should be included within the brackets.

• Note that the Illinois reviewing courts’ style varies from the Bluebook; the phrase “(Citations omitted.)” is not used in appellate or supreme court opinions.


QUOTING TEXT: QUOTATION MARKS

Omission of internal quotation marks still indicated (exception to Bluebook Rule 5.2(d)):

• Generally, quoted material is enclosed in double quotation marks (even if set off as a

block quotation), and further quotations within that material are enclosed in single quotation marks (with one space between the double and single quotation marks).

• If omission of a set or sets of quote marks will enhance the readability of a passage,

enclose the entire quotation within double quotation marks, omit the interior

quotation marks, and indicate that omission with the phrase “(Internal quotation marks omitted.)” after the close of the quotation and before the citation.

• In contrast to the Bluebook (20th ed. 2015), Illinois courts of review continue to indicate

the omission of internal quotation marks, in line with the Bluebook (19th ed. 2010) and

prior editions.


QUOTING TEXT: BLOCK QUOTATION

• When extracting materials for a block quotation, retain the general

paragraphing structure of the original, but indent each paragraph,

regardless of the style reflected in the original.

• Citations

• If the block quotation requires a case or other authority citation, the

citation should also be placed with the margins of the block and not

returned to the primary left margin.

• Place the citation after the close of the quotation and any indication of

an alteration, such as “(Emphasis added.)” or “(Internal quotation marks omitted.).” Additional citations are returned to the left margin.


STYLE REFERENCES

• Spelling of terms in Illinois reviewing court opinions should generally align with

Black’s Law Dictionary, if appearing therein; with Merriam-Webster’s

Collegiate Dictionary (11th ed.) or Merriam-Webster’s Online Dictionary

(click here) if not appearing in Black’s Law Dictionary.

• Unless contrary to the style manual, grammar and punctuation in Illinois

reviewing court opinions should generally align with the Chicago Manual of Style (16th ed. ).


https://www.merriam-webster.com/

CITATIONS

CITATION FORM

REFERENCE TABLE

Source: Style Manual for the Supreme and Appellate Courts of Illinois 88-89 (5th ed. 2017)

RULE 6. CITATIONS

• Citation of Illinois cases that :

• filed prior to July 1, 2011, and published in the Illinois Official Reports shall

be to the Official Reports.

• filed on or after July 1, 2011, and for any case not published in the Illinois

Official Reports prior to that date and for which a public-domain

citation has been assigned, the public-domain citation shall be given

and, where appropriate, pinpoint citations to paragraph numbers shall

be given

• A citation to the North Eastern Reporter and/or the Illinois Decisions may be

added but is not required.

(See here for Rule 6).

https://casetext.com/rule/illinois-court-rules/illinois-supreme-court-rules/article-i-general-rules/rule-6-citations

Citing IL Case Law: Official Reporter Format (for cases decided prior to 7/1/11)

• In general, cite to the case name, official reporter volume, name of the official reporter

abbreviated, page number on which the opinion begins, pinpoint page(s) (if applicable), court district and year.

• Sample Second District Illinois Appellate Court Opinion:

Source: Northern Illinois University College of Law, David C. Shapiro Memorial Law Library web site

https://libguides.niu.edu/c.php?g=700603&p=4971129

Citing IL Case Law: Public Domain Citation Format (for cases decided on or after 7/1/11)

• In general, cite to the public domain citation (if one exists). The Bluebook requires a parallel cite

to the regional reporter when citing to the public domain citation. This is NOT required by Rule 6.



RULE 6. CITATIONS, CONT.

• Citation of cases from other jurisdictions that:

• do not utilize a public-domain citation shall include the date and may be

to either the official state reports or the National Reporter System, or both. If only the National Reporter System citation is used, the court rendering the

decision shall also be identified.

• have adopted a public-domain system of citation, that citation shall be

given along with, where appropriate, pinpoint citations to paragraph

numbers; a parallel citation to an additional case reporter may be given

but is not required.

• Textbook citations shall include the date of publication and the edition.

• Illinois statutes shall generally be cited to the Illinois Compiled Statutes (ILCS) but citations to the session laws of Illinois or to the Illinois Revised Statutes shall

be made when appropriate .

(See here for Rule 6)

https://casetext.com/rule/illinois-court-rules/illinois-supreme-court-rules/article-i-general-rules/rule-6-citations

CASE CITATIONS, PART I

• Most signals NOT italicized (exception to Bluebook Rule 1.2):

E.g.: Accord Contra But cf. E.g. But see See Cf. See also Compare See, e.g.,

• Exception to Bluebook Table T1: use official reporters (partial exception to Bluebook Rule 10.3.3)

🡪 See “Rule 6. Citations”

• No regional pinpoint, regional reporter only on first citation (exception to Bluebook Rule 10.3.3):

As directed in the Bluebook, for those states that have adopted a public-domain system of citation, cite

according to the state’s public-domain format. However, for those states, including Illinois, that have

adopted a public-domain format that uses paragraph numbers and the citation requires a pinpoint

citation, do NOT add a pinpoint citation to the regional reporter, regardless of the state’s preference.

E.g.: Smith v. Jones, 1997 ME 7, ¶ 14, 685 A.2d 110, 115 🡪 Smith v. Jones, 1997 ME 7, ¶ 14, 685 A.2d 110

• Italicize, don’t underline, case names (exception to Bluebook Rule 2.1(a)):

E.g.: City of Chicago v. Joyce, 38 Ill. 2d 368 (1967) NOT City of Chicago v. Joyce, 38 Ill. 2d 368 (1967)

Ｘ


CASE CITATIONS, PART II

• Formal names of school districts, governments (partial exception to Bluebook Rule 10.2.1(f)):

The name of a school district or other government entity in a case title should NOT be considered a

phrase of location and should be retained. Otherwise, follow Bluebook Rule 10.2.1(f).

• Limited abbreviations(exception to Bluebook Rule 10.2):

• Use the following abbreviations, and ONLY the following abbreviations, for party names in a case

citation:

& (And) | Inc. (Incorporated) | Ass’n (Association) | Ltd. (Limited) | Co. (Company) |

Cos. (Companies) | No. (Number) | Nos. (Numbers) | Comm’n (Commission) |

R. (Rail) | R.R. (Railroad) | Ry. (Railway)

• If a word is abbreviated in the party name (i.e. Cook Bros., Inc., Raynor Mfg. Co.), leave the

abbreviation as it originally appears.

• Do NOT abbreviate the first word in the name of a party.

• A word that might otherwise be abbreviated, such as “Company,” should NOT be shortened in the

limited circumstance where it is not used in the sense of indicating a business designation but rather is

used as an integral part of the business’s name. Similarly, an article that is generally omitted, such as

“The,” is retained where it is an integral part of the business’s name.

• In all other elements of a citation, the Bluebook’s recommended rules on abbreviations control.


CASE CITATIONS, PART III• Some exceptions in citation format of Illinois administrative agency decisions (partial exception to

Bluebook Rule 14.3):

Effective July 9, 2000, amendments to the Illinois Public Labor Relations Act dissolved the Illinois State

Labor Relations Board and the Illinois Local Relations Board and transferred their jurisdiction and

authority to the State Panel and the Local Panel of the Illinois Labor Relations Board. Owing to this

change, the citation forms will be different depending on when a decision was filed.

E.g.:

• Citations to decisions of the Illinois State Labor Relations Board:

• Pleasure Driveway & Park District of Peoria, 6 PERI ¶ 2042 (ISLRB 1990)

• Citations to the decisions of the Illinois Labor Relations Board, State Panel and Local Panel:

• American Federation of State, County & Municipal Employees, Council 31, 24 PERI ¶ 84 (ILRB

State Panel 2008)

• Metropolitan Pier & Exposition Authority, 22 PERI ¶ 87 (ILRB Local Panel 2006)

• Citations to Illinois Educational Labor Relations Board decisions:

• Spraggins-Gully, 16 PERI ¶ 1043 (IELRB 2000)

Note: In certain instances, the Public Employee Reporter for Illinois (PERI) does not reflect the proper

name of the agency (e.g., “Illinois Labor Board” instead of “Illinois Labor Relations Board”).

Nevertheless, a citation to such a decision MUST reflect the proper abbreviated name of the board.


• When “id.” refers to the same case and to the same opinion cited in the

preceding citation, there is no need to repeat the parenthetical.

• E.g.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring.)

Id. at 638

• When “id.” refers to a different opinion, that fact MUST be indicated

parenthetically, even if it is the majority opinion.

• E.g.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring.) Id. at 638.

Id. at 589 (Frankfurter, J., concurring) Id. at 582 (majority opinion).


Id.

ELECTRONIC DATABASES

• “Available at” optional (partial exception to Bluebook Rule 18.2.2(f)):

Databases on the Internet are cited as directed in Bluebook Rule 18.3, with the proviso that the

“available at” designation (required in the Bluebook (19th ed. 2010) and eliminated in the

Bluebook (20th ed. 2015)) is optional for use, at the author’s election, for various citations to the

Internet.

• Note: Importance of verification:

• Court opinions are posted to electronic databases, such as the Illinois courts’ own website,

Westlaw, or Lexis-Nexis, as soon as practicable after filing. However, following issuance of a

slip opinion there are several actions the court might take (such as withdrawing the

opinion, modifying the opinion, allowing rehearing, etc.) that would affect the

precedential value of that opinion. Therefore, for recent decisions it is important to verify

the status of any opinion found on an electronic database to determine whether the court

has taken final action on the case and has released the opinion for publication.

• For Illinois Supreme and Appellate Court opinions, this can be determined by verifying that

an Official Reports version of the opinion has been posted to the courts’ website.

• An opinion that is not final should NOT be cited without that status being noted (typically

by adding an explanatory parenthetical or footnote along with the citation).


CITATION OF ILLINOIS COMPILED STATUTES

• Every initial reference to an Illinois statute MUST be followed by a citation to the Illinois Compiled Statutes (ILCS), if the act is found therein. Citation of the Illinois Compiled Statutes is according to section 5.04 of the Legislative Reference Bureau Act.

E.g.:

25 ILCS 135/5.04 (West 2010)

chapter number Act prefix number section number of the Act year of publication

• A full citation MUST be given after the first reference to a section of the ILCS. Once

the first citation has been provided, it is permissible to refer to a section in text without

including a citation. Each time a new section is introduced, a citation MUST be

included.

• Use of “et seq.” to denote an entire act is allowed(exception to Bluebook Rule 3.3)

E.g.: 720 ILCS 5/1-1 et seq. (West 2010).


LOCAL ORDINANCES

• No state required for Illinois (partial exception to Bluebook Rule 12.9.2):

• Cite local ordinances by the name of the political unit, type of code (e.g.,

municipal code, county code, zoning ordinance), section, paragraph or other part

number, and the most specific adopted, amended, or effective date available for

the cited portion (indicated parenthetically). If both an effective date and date of

adoption or approval are provided, use the most recent date of legal effect.

E.g.: Chicago Municipal Code § 8-4-015 (added June 17, 1992)

• Where the ordinance is one of a non-Illinois municipality or county, give the name

of the state parenthetically, using the postal abbreviation.

E.g.: Phoenix (AZ) Municipal Code § 1 (eff. Jan. 1, 1985).

• Cite a local ordinance in full or remove the effective date.E.g.:

• Cook County Ordinance No. 06-O-50 (approved Nov. 14, 2006).

• ordinance No. 06-O-50.

• If there is no “No.” or “§” before the ordinance number, capitalize “Ordinance.”E.g.: Ordinance 822 NOT ordinance 822


CONSTITUTIONS

Commas (minor exception to Bluebook R11)

As an exception to the Bluebook’s Rule 11, a comma appears after the abbreviation “Const.” or analogous part. The following forms should be used in citing constitutions

and their commentary.

• U.S. Const., art. I, § 9

• U.S. Const., amend. XIV

• Ill. Const. 1970, art. I, § 9

• Ill. Const. 1870, art. VI (amended 1964), § 1

• ILCS Ann., 1970 Const., art. XIII, § 8, Constitutional Commentary (Smith-Hurd 1983)

• Ill. Ann. Stat., 1970 Const., art. XIII, § 8, Constitutional Commentary, at 310-11 (Smith-

Hurd 1971)


LAW CLERKS

WHAT DO LAW CLERKS DO?

• Check the facts in the record.

• Check and verify citations.

• Offer confidential advice.

• Perform legal research.

• Write first drafts (depends on judge).

• At the appellate level, law clerks write bench memorandums.

THE INTERPLAY BETWEEN LAW CLERKS AND

JUDGES IN OPINION WRITING

• Law clerks are extensions of their judges.

• Opinion writing is a process between the judge and the

law clerk, but the decision-making isn’t. Judges may not

abdicate their judicial responsibilities.

• The judge must agree with every word as if the judge

alone wrote each word.

• A judge should never acknowledge that a law clerk wrote

an opinion: Parker v. Connors Steel Co., 855 F.2d 1510

(11th Cir. 1988).

LAW CLERK CONFIDENTIALITY

• What happens in chambers stays in

chambers.

• Don’t ask someone outside the court system to critique your draft. Matter of Fuchsberg,

426 N.Y.S.2d 639 (N.Y. Ct. Jud. 1978).

• United States v. Southern Pacific Co., 251

U.S. 1 (1919).

LAW CLERKS’

FIRST AMENDMENT RIGHTS

• Sheppard v. Beerman, 94 F.3d 823

(2d Cir. 1996) (refusal to draft an

opinion).

LAW CLERK CHEATING

Talking Heads Rock Band

• United States v. Abner, 825 F.2d 835 (5th Cir. 1987).

• State v Lewis, 19 Kan. 260 (1878)

(adding a lawyer’s lament as a fictional “reporter” to

the official reports).

RHETORICAL DEVICES

●Parallel structure.

●Antithesis.

GENERAL STYLE

• With the exception of the word “o’clock,” contractions are NOT to be used in an

opinion (unless appearing in quoted material).

• In section numbers, docket numbers, and to show numeric ranges in citations, use a single hyphen (-), rather than an em dash (—), en dash (–) or two hyphens ( - - ).

E.g.

735 ILCS 5/1-101 et seq. (West 2014) (Not 735 ILCS 5/1—101 et seq. (West 2014) )


GENERAL STYLE, CONT.

• A possessive ending added to a case name is in roman typeface. E.g. Miranda’s requirements were not followed.

(Not: Miranda’s requirements were not followed.)

• Crimes of attempt are referred to as, e.g., attempted murder or attempt to

commit murder or attempt (murder), NOT “attempt murder.” If “attempt” is

used as a noun, “murder” must be reconfigured to modify “attempt,” by

placing it either in a parenthetical or other adjective phrase.

• Other terms:

• Attorney fees (NOT attorney’s fees, NOT attorneys’ fees)

• Mechanic’s liens (but Mechanics Lien Act)

• Workers’ Compensation Commission, workers’ compensation


ABBREVIATIONS

• Generally, abbreviate ONLY:

• Words that precede or follow personal names—Mr., Ms., Mrs., Jr., Sr., Esq., M.D.

• Words that denote expressions of time—a.m., p.m., CST, A.D., B.C.

• Miscellaneous expressions that generally appear primarily in their abbreviated

form—i.e., e.g., et al., f.o.b., No.

• Limited (Ltd.) /Incorporated (Inc.) when part of a business name

• Do NOT abbreviate units of measurement, e.g., centimeters (NOT “cm”).


ITALICIZED WORDS

• Italicize words and phrases in a foreign language that have not been well accepted into the English vocabulary and are likely to be unfamiliar to readers.

E.g.:

ad hoc, bona fide, de facto, de minimis, de facto, e.g., forum non conveniens, habeas

corpus, id., i.e., in personam, in rem, n.o.v., prima facie, pro bono, pro rata (noun),

quantum, res ipsa loquitur, res judicata, respondeat superior, sic, stare decisis, sua

sponte.

• The following words should be in roman typeface:

alter ego, etc., remittitur, situs, status quo, subpoena(ed), venire.


CAPITALIZATION

• Do NOT capitalize common nouns, e.g., complaint

• Do NOT capitalize the descriptive names of documents and their parts

• e.g.: the constitution, the first amendment of the United States Constitution

• But: Certain short-form statute names have become so well established that they can be used

and capitalized despite not being the act’s formal name, e.g., the Post-Conviction Hearing

Act.

• Do NOT capitalize partial names of courts, with the exception of “Court” for the Supreme

Court of the United States.

• e.g.: the supreme court (Illinois), the circuit court of Adams County the court of claims

• Capitalize a formal title when it immediately precedes the name of the person holding

that title, e.g., Senator Tammy Duckworth. But titles following an individual’s name are

generally not capitalized, e.g. Tammy Duckworth, senator from Illinois.


NUMERALS: GENERAL RULE

Spell out the numbers zero to nine in text and in footnotes and use numerals for larger

numbers (10 and above), subject to the following exceptions:


• Spell out the numbers:

• for any number that begins a sentence.

• for “Hundred,” “thousand,” and similar round numbers, if done so consistently.

• when a series includes numbers both <10 and ≥10, numerals should be used for the

entire series of the same unit type.

e.g. “10 years’ imprisonment with a 15-year firearm enhancement for armed

robbery and 6 years in prison for aggravated battery with a firearm, minus 2

months’ credit for time served.”

But “two sentences of 25 years and 6 years, respectively.”

• Use numerals:

• if the number includes a decimal point.

• where material repeatedly refers to percentages or dollar amounts.

• for section or other subdivision numbers.

COMMAS WITH NUMERALS

• Bluebook Rule 6.2(a)(vii).

• Use commas in numbers only where they contain five or more uninterrupted

digits (i.e., numbers to the right of a decimal point are not counted).

E.g.

1,234,567 but 9876 $20,000 but $2000.25.


FRACTIONS

• Fractions standing alone or if followed by the words “of a” or “of an” are generally

spelled out.


• E.g.

three-fourths of an inch (NOT 3⁄4 inch or 3⁄4 of an inch)

one-half inch (NOT 1⁄2 inch or 1⁄2 of an inch)

one-hundredth of 1% (NOT 1/100 of 1%)

But: 1⁄2 to 13⁄4 pages, 1⁄2-inch pipe

MONEY

• The dollar sign ($) should be used in lieu of the word “dollar.” e.g. $3.65, $5 million

• The word “cents” should NOT be abbreviated or replaced with a symbol.

e.g. 75 cents, 0.5 cent


PERCENTAGE

• Use a percent sign (%) rather than the word “percent” with a numeral, e.g., 5%.

• Because a sentence should not begin with a numeral, the sentence should be

restructured to avoid the use of the spelled-out number with the word “percent.”

e.g. Five percentage points


DATES

• When the day follows the month, use cardinal figures, e.g., January 1, October 19 is the

day.

• Abbreviated ordinals (e.g. 1st) are NOT used with dates and are used only in street

names in text.

• When the day precedes the month or stands alone, use ordinal words, e.g., it happened on the third of the month.

• Omit the commas when only the month and year are used, e.g., October 2021 is the

month.

• If the word “from” precedes a year or the word “inclusive” follows it, the second year is

not shortened, and the word “to” is used in lieu of the hyphen, e.g., From 1933 to 1936.

• A.D. precedes the year (A.D. 937), and B.C. follows the year (254 B.C.).


AGES

• Ages follow the general rules on when to spell out a number(≥10) and when to

use a numeral (<10).

e.g.

His son is four years old. Her dad is 60 years old.

• Hyphens are employed only when the phrase denoting age is employed as a

noun or where it precedes the noun it modifies. e.g.

He has a four-year-old boy

His four-year-old is well prepared for kindergarten.

He fits in with the group of seven- to nine-year-olds.He fits in with the group of 9- to 12-year-olds. (both ages become

numerals because 12 ≥10)

A four-and-a-half-year period.


ENUMERATED LISTS

• Semicolons are used in numbered lists ONLY where the listed items are structurally complex, usually by virtue of containing intervening commas. But in a list of two items, NO comma or semicolon is required between the two items at all. e.g.

• “With respect to the discovery of the revolver on June 30, 2010, defendant argues that (1) he was not present, (2) others had access to the area where the revolver was found, and (3) defendant’s partial thumb print on the plastic bag containing the gun must be disregarded because Julie Smith’s testimony concerning the identification of the thumb print was hearsay.”

• “Testimony from Abe Ghazai and Thomas Campbell established that no inquiry was made into whether Happ’s had experience and that defendant selected Happ’s, which was on defendant’s list of approved contractors, because (1) Happ’s was in the right type of business, i.e., track and scrap removal; (2) Happ’s was local; and (3) Happ’s bid was the most economical.”

• A numbered list is preceded by a colon ONLY where the list is not syntactically part of the sentence. e.g.

• “Reading both documents together, two questions emerge: (1) whether, as a matter of law, the public recital required by section 2(e) of the Open Meetings Act must include an explanation of the significance of the contemplated action and (2) whether, in this case, the Board violated section 2(e) by failing to satisfy the public recital requirement at the open meeting at which the Board voted to approve the agreement.”


QUESTIONS?

REFERENCES

● RUGGERO J. ALDISERT, OPINION WRITING (2D ED., AUTHORHOUSE 2009).

● RUGGERO J. ALDISERT, MEEHAN RASCH & MATTHEW P. BARTLETT, OPINION WRITING AND OPINION

READERS, 31 CARDOZO L. REV. 1 (2009).

● DOUGLAS E. ABRAMS, JUDGES AND THEIR EDITORS, 74 JOURNAL OF THE MISSOURI BAR 194 (2018).

● AMERICAN BAR ASSOCIATION—APPELLATE JUDGES CONFERENCE, JUDICIAL OPINION WRITING MANUAL

(WEST GROUP 1991).

● CONNIE E. BOLDEN, APPELLATE OPINION PREPARATION: A SELECTIVE BIBLIOGRAPHY AND SURVEY

(NATIONAL JUDICIAL COLLEGE, RENO, NEVADA, 1978).

● BENJAMIN N. CARDOZO, LAW AND LITERATURE, 39 COLUM. L. REV. 119, 52 HARV. L. REV. 471, 48 YALE

L.J. 489 (1939) (REPRINTED FROM 14 YALE REVIEW [N.S.] 699 (JULY 1925)).

● FEDERAL JUDICIAL CENTER, JUDICIAL WRITING MANUAL (2D ED., 2013).

REFERENCES

● JOYCE J. GEORGE, JUDICIAL OPINION WRITING HANDBOOK (5TH ED., WILLIAM S. HEIN & CO. 2007).

● JAMES D. HOPKINS, NOTES ON STYLE IN JUDICIAL OPINIONS, 8 TRIAL JUDGES J. 4 (1969) (REPRINTED IN

ROBERT A. LEFLAR, QUALITY IN JUDICIAL OPINIONS, 3 PACE L. REV. 579 (1983)).

● JUDITH S. KAYE, JUDGES AS WORDSMITHS, 69 N.Y. ST. B.J. 10 (NOV. 1997).

● MOSES LASKY, OBSERVING APPELLATE OPINIONS FROM BELOW THE BENCH, 49 CAL. L. REV. 831 (1961).

● GERALD LEBOVITS, ADVANCED JUDICIAL OPINION WRITING: A HANDBOOK FOR NEW YORK STATE TRIAL

AND APPELLATE COURTS (7.4 ED., N.Y. ST. JUD. INST. 2004) (AVAILABLE AT

HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1406709).

● GERALD LEBOVITS, SHORT JUDICIAL OPINIONS: THE WEIGHT OF AUTHORITY, 76 N.Y. ST. B. ASSN. J. 64 (SEPT. 2004).

● GERALD LEBOVITS, JUDICIAL JESTING: JUDICIOUS?, 75 N.Y. ST. B. ASSN. J. 64 (SEPT. 2003).

REFERENCES

● GERALD LEBOVITS, A POX ON VOX POP, 76 N.Y. ST. B.J. 64 (JULY/AUG. 2004).

● GERALD LEBOVITS, THE DEVIL'S IN THE DETAILS FOR DELUSIONAL CLAIMS, 75 N.Y. ST. B.J. 64 (OCT. 2003).

● GERALD LEBOVITS, POETIC JUSTICE: FROM BAD TO VERSE, 74 N.Y. ST. B.J. 48 (OCT. 2002).

● GERALD LEBOVITS, JUDGMENT WRITING IN KENYA AND THE COMMON-LAW WORLD, 2 KENYA L. REV. 218 (2008-2010).

● ROBERT A. LEFLAR, APPELLATE JUDICIAL OPINIONS (WEST GROUP 1974).

● KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (LITTLE, BROWN & CO. 1960).

● JOHN B. NESBITT, VIEW FROM THE BENCH, THE ROLE OF TRIAL COURT OPINIONS IN THE JUDICIAL PROCESS, 75 N.Y. ST. B.J. 39 (SEPT. 2003).

● RICHARD A. POSNER, JUDGES’ WRITING STYLES (AND DO THEY MATTER?), 62 U. CHI. L. REV. 1421 (1995).

● GEORGE ROSE SMITH, A PRIMER OF OPINION WRITING, FOR FOUR NEW JUDGES, 21 ARK. L. REV. 197 (1967).

REFERENCES

● JENNIFER SHEPPARD, THE “WRITE” WAY: A JUDICIAL CLERK’S GUIDE TO WRITING FOR THE COURT, 38 U. BALT. L. REV. 73 (2008).

● PATRICIA M. WALD, THE RHETORIC OF RESULTS AND THE RESULTS OF RHETORIC: JUDICIAL WRITINGS, 62 U.

CHI L. REV. 1371 (1995).

● NANCY A. WANDERER, WRITING BETTER OPINIONS: COMMUNICATING WITH CANDOR, CLARITY, AND

STYLE, 54 MAINE L. REV. 47 (2002).

● 1 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 8A & B (LITTLE, BROWN & CO., PETER

TELLERS REV. ED. 1983).

● BERNARD E. WITKIN, MANUAL ON APPELLATE COURT OPINIONS (WEST GROUP 1977).

● RYAN BENJAMIN WITTE, THE JUDGE AS AUTHOR / THE AUTHOR AS JUDGE, 40 GOLDEN GATE U. L. REV. 37 (2009).

● ILLINOIS ADMINISTRATIVE CODE AND ILLINOIS REGISTER STYLE MANUAL (JUNE 2004).

● STYLE MANUAL FOR THE SUPREME AND APPELLATE COURTS OF ILLINOIS (5TH ED. 2017).

HON. GERALD LEBOVITS

Gerald Lebovits is an acting NYS Supreme Court justice in Manhattan,

New York. The president of the NYS Association of Acting Supreme Court

Justices, he previously served as president of the Board of Judges of the

NYC Civil Court and the NYC Association of Housing Court Judges.

He thanks his judicial intern, Ya-Ting Chiang, a 2021 University of Chicago

LL.M. graduate, for her excellent help preparing these slides.

Judicial Writing for Ill. App. Ct. Justices & Staff (PPT 10/19/21)

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Transcript of Judicial Writing for Ill. App. Ct. Justices & Staff (PPT 10/19/21)