The Appellate Record : Texas Appellate Lawyer & Attorney Kendall Gray for Fifth Circuit & Supreme Court Appeals

My first post on Hertz Corp. v. Friend summarized how the Court adopted the “nerve center test” for determining the state where a corporation’s principal place of business is located. This post uses Justice Breyer’s opinion (pdf) as a writing exercise.

• This is my version (pdf) of Justice Breyer’s opinion (pdf), about 5 pages shorter than the original.
• Here’s a redline of my changes (pdf)

The changes to the opinion illustrate a problem that infects so much of legal writing.

“What is the problem?”

Well, I’m glad you asked. It is the failure, as Strunk and White would say, to "choose a suitable design and hold to it." The problem is structural.

Specifically, the structure of the opinion does not match up with the structure of the Court’s reasoning. As a result, the opinion contains excessive length and gives primary place for discussion of secondary or tertiary matters. 

Here’s what I mean:

On pages 14 through 17 of the opinion, the court assigned three basic reasons for its holding that “principal place of business” means “nerve center.” It relied first upon the language Congress used (always a good place to begin in construing a statute). Second, it relied upon the policy reason of “administrative simplicity” that would be furthered by the Court’s construction. Only last did it rely upon the history of the statutory enactment, which tends to support the meaning the Court gave to Congress’ language. 

The structure of the Court’s reasoning is sound.  That is how we should read statutes: language first to be followed by policy and history to the extent that helps choose among competing constructions. But the structure of the opinion obscures rather than restates and enhances that analysis. The secondary and tertiary reasons are given primary place at the expense of looking to Congress’ language, which ought to be the focus. 

For example, the introduction, for the most part, is clear and concise. But the introduction states that the Court places “primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible.” Thus, the secondary reason has become primary.

Immediately after recounting the procedural history of the case and the circuit split warranting certiorari review, the Court again changes tack again and begins its discussion with a six page history lesson, what Justice Breyer calls “a brief review,” beginning with the First Judiciary Act in 1789 and proceeding through a Judicial Conference Committee Report and ultimate codification in 1958. This is the longest single discussion in the opinion. So now, it looks like third place history has vaulted to the primary position. 

It is now page 14 of a 19 page opinion and the Court has yet to discuss the ordinary meaning of the terms, grammar and syntax chosen by Congress. And yet the language is the reason the Court assigns as “first” in supporting its holding.

I’m not just picking on Justice Breyer, whom I love to read. You could perform this exercise with any piece of legal writing and likely find the same issues and make the same improvements. All of us law nerds tend to run on when it comes to legal history and other matters that fascinate us, even when it is secondary to the main point.  

But whether one is writing a brief or a letter or a Supreme Court opinion, an unfocused structure impairs the ability to persuade while adding unnecessary length. If, on the other hand, the structure of the opinion or the structure of the brief mirrors the structure of the reasoning, the sound, logical foundation is clearer, more persuasive and shorter.

Again, here’s how it would look in practice:

• If the opinion were rewritten using the structure of (1) language then (2) policy then (3) history, here’s what the redline would look like (pdf). 
• And the final opinion would look like this (pdf)

Note that the final opinion is much shorter.  The structure of the opinion matches the structure of the reasoning.  The historical potpourri is shortened and mostly reserved to footnote discussion.  And when the history is discussed, most precise dates have been removed, because it is immaterial whether the Congress discussed the matter in June of 1951 or Spring of 1789.  We only need to know that it happened leading up to the statute in issue. 

I have changed very little of Justice Breyer’s actual syntax or voice, which I happen to like, but by simply moving things around, I think the writing and the reasoning are now singing from the same hymn book.

The Take Away:

• Write no line before it’s time.
• Begin with the end in mind.
• Know the structure of your argument first.
• Construct your written product to mirror and enhance the structure of your argument.

No need to thank me, Justice Breyer. I’m just here to help.