In Part 1 of my interview with Justice Michael B. Hyman, we discussed how Lincoln’s professionalism and civility are a model for lawyers even today. In Part 2 below, Justice Hyman takes on legal writing, both that of the lawyers who appear before him and his own approach to writing appellate court decisions.
Hyman, a journalism major, had advice for lawyers’ writing. “The thing that has surprised me the most is disappointment in the ways lawyers write. Most lawyers don't take the time, it's sloppy.
“Make sure the cases stand for the proposition for which you cite them. Make sure the facts are as you summarize. Be sure to cite contrary authority. They will find it anyway.
“Do not use language that vilifies the other side. Go for the issues, don’t go for the opponents. Watch your adjectives.”
Hyman appreciates it when lawyers use headings. “They give you a road map. In fact, you should just be able to look at the headings and know what the arguments are, where you're going.” And he also appreciates when lawyers front the facts that cut against their case. “Tell the story and often we'll get a responding brief that says that's only half the story. The other half is going to come out. The other half is not the way it is, there is a reply and we'll find out the other truth. Cases turn more on their facts than anything else.”
Be sure to establish jurisdiction. Don’t expect oral argument. Most cases don’t get one.
He pays particular attention to replies. “I think they're extremely important. Usually it's more like the opening brief is putting the ball on the tee and then you hit but you know you never get that tee again so you're just teeing off. Then, the next shot, move the ball ahead a lot. And then that reply, we're talking about a three-hole game here, but you want to get it in the cup with the third shot. If you miss then the appellee might win.
“Opening briefs are usually pretty vanilla. The response clarifies the issues, and the reply is the appellant's opportunity to make their case. The first time they make their case they're bidding against themselves. It's only them so how could they lose? They have nothing to contest. But in the reply, that's when you really show your hand why you should win. Note, you can't put anything new in the reply. Anything that you were going to say had better be in your opening brief.”
Hyman discussed his own writing—appellate opinions. “I'm going to write it for the parties to understand why the party that loses lost. To me the reason for an opinion is to explain to the loser. Usually if you win an appeal, you really don't care what the reason is, you won. But if you lose, you want to know, why did I lose? You want to know every reason why you lost.”
“When it's an opinion that you're writing more for posterity and the precedent, then you have to take that in mind. You're trying to avoid generalities and sloppy language. Somebody might use what you said in ways that you did not intend.”
Hyman has not shied from writing dissents. “Giving a dissent means you don't think the result is one that you agree with. If that's true it's very important to put that on paper and have that part of the record for the future because the law may change. Many cases have changed because of dissents.It might help the Supreme Court decide to take the case because there is a disagreement. It can be very important.
He described the back and forth process a panel goes through. “A lot depends on who is making up the panel. Some things that sometimes might be a dissent would have been a majority opinion but for the panel numbers.”
“Concurrences may be a little rare, but not necessary unless you disagree with presentation of an issue or you have something else you want to say. Sometimes we don't have concurrences because we talk with one another and the author might say yeah I agree, I'll change that. That happens quite a bit. There's discussions behind the scenes and if the author is willing or if the other justice who agrees with the author are willing to make a change, then you don't need the concurrence. Otherwise, if you think it's important enough, you should write it. Usually we work those things out. I think it's more likely that I file dissents more often than I file concurrences.
“If I have to be honest to myself and the job and if I don't believe that the result is justified by the law and the facts, if I don't write it, then I haven't done my job. That's my job. My job is not to sit here and never write a dissent. Any jurist on an appellate court who doesn’t dissent extremely and frequently cannot be doing his or her job because there are too many cases and there's too much opportunity to at least say something that you don't agree with.”