(Tom speaks only for himself in this blog and not for the Court.)
“It was a tragic night. On June 28, 2005, Jesus Jaime Torres, Sr. drove from Pasco to Sunnyside, Washington. It is not entirely clear what happened next, but we know that shots were fired. Upon hearing the gunshots, neighbors summoned police, who arrived at a bloody scene. In all, five people had been shot and two, including Torres, later died. Police found the door to a home open and a puddle of blood in the entryway. The police entered and found an injured man and $57,990, packaged to resemble a kilogram of cocaine. Torres’s car was parked outside, a door and the trunk open, both stained with blood. Five bags of what appeared to be cocaine (but was in fact powered plasterboard) were nearby.
Exactly what happened that night may never be known but it appears after being shot, Torres managed to stumble to a nearby home where the residents disarmed him before letting him in and calling 911. He was taken to a local hospital before he died. Cash in the amount of $9,342 was found on Torres’s body, some by hospital employees while treating him, some during an autopsy.”
Guillen v. Contreras, 169 Wn.2d 769, 772, 238 P.3d 1168 (2010), available here.
One does not think of judicial opinions as scintillating prose. Lawyers, for the most part, find judicial opinions painful to slog through. Judicial opinions are often so filled with jargon and alphabet soup they leave most non-lawyers bewildered and baffled. As I explained to each new clerk who helped me, we appellate judges are the only authors whose writings require reading no matter how badly we write. That does not give us a license to be boring and obscure.
I have received many compliments on my opinions both for style and content. I recently received a nice letter from the Washington Appellate Lawyers Association saying in part: “Your many published opinions are clear, concise (a rarity these days) and well reasoned. We note that many of your opinions yield hundreds “citing references” on Westlaw. These often include courts from other jurisdictions which have found your opinions to be persuasive precedent.”
I think there are several reasons why lawyers and others like my opinions. First, before I began writing an opinion I would ask myself three questions: 1) what is it I want to accomplish with this opinion, 2) who is my audience, and 3) how can I make it interesting to read? Having answered these three questions, I would then begin to organize the opinion.
1) What is it I want to accomplish with this opinion?
The answer to that question would help me frame the issue. And, of course, how the issue is framed will usually determine the holding. The Washington Constitution requires that we give reasons for our rulings. So, at the most basic level, an opinion must set forth the court’s holding and then justify that holding, nothing more. I did not have a formula as did some of my colleagues. Most often I see opinions that set forth the issue to be decided, a review of the law in the area, and then a holding. That model is taught in law school legal writing classes. For me, it does not make for very interesting reading and the review of the law may be useful in a young lawyer’s memo to a senior partner, but totally unnecessary in a judicial opinion. A review of the law, not tailored to the case before us may confuse and even undermine the holding and allow the opinion to be cited for propositions not intended by the court.
Most of the cases reaching the Supreme Court are complex with multiple issues often involving both statutes and constitutional claims and technical issues such as waiver and harmless error. But even in these cases, the Court took the case to clarify only one or two issues of law. Generally, my goal was to write so as to simplify and clarify the law on the one or two key issues the court wanted to clarify. Sometimes the area of law was new to me or quite complex. It such cases, my goal was often to write very narrowly so as to not inadvertently screw up and make the law more confusing because of fact patterns or applications of my holding I had not thoroughly thought out. After reviewing a host of cases involving police officers improperly inserting their opinions as to guilt of the defendant, I laid out in the opinion and by example in a footnote the proper procedure for introducing officer testimony to keep improper opinions from the jury. State v. Montgomery, 163 Wn.2d 577, 589-94, 183 P.3d 267 (2008). I had hoped judges and prosecutors would adopt the approach and while I don’t know if it did any good, my impression is we saw fewer of those cases after the opinion was published.
2) Who is my audience?
Generally, if it was a criminal case, I wanted my holding to be in simple words so that every jailhouse lawyer and cop on the street would understand. Sometimes, I would write a scholarly opinion but insert one summary paragraph for the jailhouse lawyers and cops. For example, in a technical case about the interplay of the special sex offender sentencing alternative (SSOSA), pre-confinement community custody, post confinement community custody, and constitutional limitations on maximum sentences, I summarized the holding in as plain as terms as I could using a metaphor I hoped many people would relate to. I explained that “When the legislature created SSOSA as an alternative for sex offenders amenable to treatment, it provided to the courts two tools: a carrot and a whip. The suspension of the sentence subject to treatment and other conditions is the carrot. Incarceration followed by supervised time in the community is the whip. Time spent eating the carrot and time spent under the whip are qualitatively different. The legislature did not intend that the time the offender spends nibbling at the carrot would reduce time under the whip.” State v. Pannell, 173 Wn.2d 222, 233-34, 267 P.3d 349 (2011), available here.
Once I wrote an opinion on the taxation of sewage and sewer lines. The area is controlled by engineering terms that have very specific meanings. I checked out an engineering dictionary and wrote for an audience of engineers. City of Spokane ex rel. Wastewater Mgmt. Dep’t v. Wash. State Dep’t of Revenue, 145 Wn.2d 445 38 P.3d 1010 (2002). Another time I wrote an opinion on future interests in real property. I decided the case would mean what ever a highly regarded commentator in the area would say the case meant, so the commentator, William Stoebuck, became my audience. 1515–1519 Lakeview Boulevard Condo. Ass’n v. Apartment Sales Corp., 146 Wn.2d 194, 43 P.3d 1233 (2002). There was once a brief moment after working on a case for over a month, I thought I understood the concepts of double jeopardy and merger. My goal was to spare trial judges my agony. I laid out a four step analytical framework for Judges, my audience, to use when addressing those issues. State v. Freeman, 153 Wn.2d 765, 771-73, 108 P.3d 753 (2005).
3) How can I make it more interesting to read?
As a trial lawyer, I learned that everyone enjoys a story. No matter how dry the legal issue, every case has a story. I would often bring the reader in by telling a story with the facts. In the opening of this blog, I quoted the beginning of the facts involving the death of Mr. Torres in a drug deal gone bad. The facts had little to do with the issue which was whether the State could confiscate the money found on his person, but it certainly makes the opinion a more interesting read.
I know I would not be receiving compliments on my opinions had I not had brilliant clerks (lawyers, often top of their class and right out of law school). I was blessed to have one permanent clerk, Laura Anglin, who was my right arm for 12 years. I would like to acknowledge and thank my clerks: Tonie Davis, Margaret Brammall, Margaret Elofson, Barbara Rhoads-Weaver, Kyle Olive, Todd Reichert, Bryan Doran, Jennifer Sweigert, Richard Goldsworthy, and Nathan Sherrard.