Advice to

Law Clerks:
How to Draft
Your First
Judicial Opinion
BY HON. GERALD LEBOVITS AND LUCERO RAMIREZ HIDALGO, ESQ.*

INTRODUCTION
You just got a job clerking, interning, or externing for a judge. Among your other
responsibilities will be to draft your first judicial opinion.1 If legal writing is the
hardest of the legal arts to master, judicial-opinion writing is the hardest of the legal-
writing arts.2 The court needs to get the decision right and for the right reasons. The
task is difficult to handle without guidance.3 This article tries to demystify the task
of drafting a credible, dignified, and impartial judicial opinion.
The entire adjudicative function and decision-making process is entrusted to the
judge alone.4 Nonetheless, judges often assign their clerks to write the first drafts of
their opinions.5 Clerks generally have good writing skills, but opinion writing re-
quires a particular style, tone, and organization. No matter how flawless your legal
analysis or how well you write, expect the judge to edit your draft until it looks and
reads like the judge’s own handiwork. Do not take the edits personally or let your ego
interfere. Learning to emulate the judge’s writing style will make you a better clerk,
as you will facilitate the judge’s editing task and make the editing more efficient.6
A judicial opinion is a “statement of reasons explaining why and how the deci-
sion was reached and providing the authorities upon which the decision relies.”7
The primary purpose of an opinion is to give the parties the reasons that justify the
court’s outcome.8 Judicial opinions are persuasive writing.
Judges write opinions for many reasons: to help think through the issues;9 to
explain to the parties, their counsel, and the appellate courts how and why the case
was decided; to advance the law’s development; to provide consistency by setting
precedent;10 to show the public that judges are doing their job; to teach the law to
students and the public; and to convince a possibly unfavorable audience that the
judge wrote a correct decision. Opinions are the principal way judges communicate
with society.11 Opinions must not merely withstand criticism, they must also pro-

* Gerald Lebovits is a judge of the New York City Civil Court, Housing Part; an adjunct
professor at St. John’s University School of Law; and a faculty member of the New
York State Judicial Institute in Westchester, New York. Lucero Ramirez Hidalgo, of the
New York and Mexican bars, received a Licenciado en Derecho (J.D.) in 2004 from the
Instituto Tecnologico Autonomo de Mexico and an LL.M. in 2007 from Columbia Law
School, where she was a Harlan Fiske Stone Scholar.

Volume 36, No.1 29

Electronic copy available at: http://ssrn.com/abstract=1439840
mote respect for the courts and the administration of justice.
This article is divided into four sections. The first offers ideas on how to under-
stand the case before putting pen to paper. The second discusses the drafting process.
The third suggests how to review the draft to improve it. The fourth gives some
pointers on what to do and what to avoid in opinion writing.

UNDERSTANDING THE CASE

The first thing to do when the judge assigns your first opinion to you is to make
sure you understand the case. This implies becoming familiar with the facts, the
procedural history, the issues, the standard of review, the applicable law, and how
the case must be resolved. Only when you fully understand the case will you be able
to start drafting.
To understand the case, review the parties’ submissions and identify the issues in
dispute. Sometimes the parties will have correctly identified the issues in their briefs.
Other times you will find other issues that must be resolved or that the parties stated
the issues incorrectly. Ascertain the issues yourself.
Once you have identified the issues, determine why the case is before the court
and whether the court has jurisdiction, as “without jurisdiction to hear the case, an
opinion stands on very shaky ground.”12 Next, identify the procedural posture and
what relief the parties seek.
Then familiarize yourself with the relevant facts. A fact is relevant if it will affect
the analysis and the decision. Do not get lost in every factual detail. Take notes or
create timelines to recall the facts.
Next, determine what standard of review or burden of proof the court will need
to apply to the case. At the trial level, the standard of review is the test the court uses
to decide a motion. At the appellate level, the standard of review is the level of defer-
ence with which the appellate court will review the trial court’s decision. At either
level, the standard of review or the burden of proof is the lens through which the law
applies to the facts.
Move on to the applicable law. Do not rely only on the law the parties cited. Do
your own research to verify that the authorities on which you might rely are good
law. It is sloppy when a lawyer cites bad law, but a judge who cites bad law will ren-
der a bad opinion.
Regardless of whether the judge has told you how to resolve the case or whether
you are left on your own to suggest an outcome, review everything with an eye to-
ward recommending and supporting a conclusion with which you are comfortable.
Once you review the facts, ascertain the standard of review, study the law and
arrive at a conclusion, you should have a rough idea how the opinion should be laid
out. Even so, if the opinion will be longer than two or three pages, you will not be
able to draft it clearly and efficiently unless you create an outline first. Outlining is an
investment in organization and readability.13 Outlining organizes thoughts, identifies

30 Westchester Bar Journal

shortcomings and is efficient. It takes less time to outline than to repair an unclear
draft later.
Once you have an outline, discuss the case with the judge or, if you are an intern
or extern, with the judge’s law clerk. Doing so will save time and effort. The conver-
sation might begin like this: “This is a car-accident case. The defendant moves for
summary judgment seeking dismissal. The defendant raises two points. As to the
first point, the defendant argues xx, while the plaintiff argues yy. As to the second
point, the defendant argues xx, while the plaintiff argues yy. I recommend that the
plaintiff win because yy.”

DRAFTING THE OPINION

Once you understand the case and the judge approves your outline, you are ready
to start writing. It will be helpful to read some of the judge’s earlier opinions to give
you a template and help you mimic the judge’s style and organization. Although
different opinion writing styles abound14 and no two opinions are alike (unless the
opinion is simple boilerplate), judges often have a traditional style that follows this
order: caption, introduction, statement or findings of facts, statement of issues, legal
analysis or conclusions of law, and conclusion.15
The caption identifies the case by including the court’s name, the docket number,
the parties’ names, the judge’s name, and the title of the document, such as “Order
and Opinion.”
The introduction or opening paragraph in a traditional opinion should tell the read-
er in a few seconds the essentials of the case: what the case is about; who the parties
are; and, often, what the outcome is.16 If you can draft an opening paragraph that gives
all this information succinctly and concisely, writing the rest of the opinion will be
easier. The most common technique is to introduce the action and the litigants, write
the most essential procedural history and facts, formulate the issue in general terms,
and give a brief answer. The goal is to “combine the procedure, the facts, the issue and
the answer to the issue in one fell swoop.”17 Investing the time coming up with a good
introduction will improve your opinion’s readability and will be time well spent.
State the relevant facts. Get the facts directly from the record to be certain of their
accuracy: “An opinion writer is entitled to the greatest leeway both in his law and
in his reasoning, for they are his. But honesty allows no leeway in his statement
of facts, for they are not his.”18 Tell the facts impartially to show fairness in the
court’s consideration of the case.19 In using impartial, accurate facts, consider the
losing side’s facts and resolve issues of credibility. Tell your facts with specificity,
not conclusions. Do not parrot the record witness by witness. Use emotional themes
without writing emotionally. That involves understatement, a writing device linked
not only to persuasion but also to integrity.
If possible, state the facts chronologically; the natural sequence of events will en-
gage the reader. Only if a chronological narration is confusing — for example, if
there are several claims or counterclaims — should you choose a thematic order.

Volume 36, No.1 31

Facts can also be ordered by importance, but that will make it difficult to create an
easy-to-follow sequence. Do not copy a litigant’s rendition of the facts. Doing so sug-
gests a lack of independent thought and cuts against the perception of impartiality,
fairness, and integrity.20
Once you have stated the facts of the case, mention the issues the court will address.
Judicial opinions should resolve only the claims and issues before the court. Avoid
wandering off on hypotheticals or addressing issues that go beyond resolving the case.
Doing so will lead readers to incorrect interpretations and unwelcome dicta.
When you phrase your issues, do so neutrally. The opinion will show bias if, in
simply stating the issue, the court favors one side over the other. Then blend law and
fact so that answering each issue resolves that part of the case. Address the issues
by logical order, by a threshold issue that takes precedence over the merits, or by the
order of greatest importance to the conclusion and not necessarily in the order the
parties laid them out. Follow that order when you analyze the issues.
As soon as you list the issues, analyze them. Legal analysis requires applying the
law to the facts. The standard of review or burden of proof will give you the frame-
work for your analysis; state the standard or burden before you engage in a detailed
analysis of each issue. A short opinion will not require headings, but longer or more
intricate opinions might be more difficult to follow if topics are not divided up by
headings. Consider headings, written neutrally, to keep you and the reader on track.
The complexity of the facts and the nature of the legal issues will determine the
depth of the analysis of facts and law. Shape the opinion accordingly.21
The most important thing the opinion must do is “state plainly the rule upon
which the decision proceeds. This is required in theory because the court’s function
is to declare the law and in practice because the bar is entitled to know exactly what
rule it can follow in advising clients and in trying cases.”22 Give the real reasons for
the decision -- candor reveals integrity. Do not reveal personal thoughts in the guise
of candor. An opinion resolves issues and should not be a vehicle for introspection
or self-congratulation23
Large block quotations go unread. Do not use them unless the court must inter-
pret a statute or contract or is relying on key language from a seminal case. Instead,
analyze the facts of the case, apply the law, and explain why the decision is justified.
Like boilerplate opinions, which suggest that different cases were not analyzed dif-
ferently, block quotations signal laziness and a lack of analysis. This is disrespectful
to the case, the parties, and the judicial function.24
Avoid metadiscourse. Metadiscourse, the antithesis of concision, consists of an-
nouncing what the writer plans to write. Examples of metadiscourse: “after careful
consideration,” “having read all the papers, the court concludes that,” “it is well-set-
tled that,” or “it is hornbook law that.” Opinions should get to the point and consid-
er the facts and law carefully without saying how well they were researched or how
seriously they were considered. Metadiscourse is condescending and pedantic.25

32 Westchester Bar Journal

 Some judges like to include a closing paragraph after each issue has been ana-
lyzed. It is a final opportunity to restate and summarize the holding. If your judge
follows this format, do not repeat all the information you have already given.
Conclude by stating the court’s holding clearly. An opinion explains the reasons
for the outcome of the case. Close the opinion with the decision.26 The description
that the court makes of its own holding will communicate the scope of the decision
and set the opinion’s precedential status.27
Once you have a complete draft, be ready to start reviewing. The judge will expect
your best product to start the collaborative effort of editing the opinion. Your goal
is to craft a judicial opinion that is respectful, well-reasoned, factually honest and
carefully written. Opinions must encourage public respect for the judiciary and ac-
ceptance of its opinions.28

EDITING AND PROOFREADING

The revision process is designed to help your reader understand the opinion.
Reviewing an opinion is time consuming and requires concentration, dedication,
patience, and thoroughness.
To begin, make sure you are in the right state of mind, one that will allow you to
evaluate your work and make edits to improve it. An effective way to get started is to
put your work aside for a few hours, or even days, between drafts. Start the project
early and leave time to reflect.
Editing and proofreading are the twin parts of revision. Editing corrects large-
scale problems like content, organization, and reasoning. Proofreading corrects mi-
nutia like typographical errors, grammar, citations and format. Both aspects are cru-
cial in producing a final product that is professional, easy to read and effective — an
opinion worthy of having been produced by your judge.
You might want to start the editing stage by testing your draft to improve readabil-
ity. You are looking to find ways to improve coherence, structure, and style. Reread
the opinion a few times all the way through. This simple exercise will locate struc-
tural shortcomings or inconsistencies in style. If you find problems, create a new
version of the document and come up with a better result. Having this new version
allows you to return to the original version if you ever find that the new version does
not improve the opinion.
If, after reading the opinion, you find no further room for improvement, ask your-
self whether the introduction gives the reader a succinct understanding of the par-
ties, why their dispute is before the court, what the relevant facts are and whether
the conclusion is justified by what precedes it. Then go to the closing paragraph to
make it consistent with the introduction. Make sure, also, that your statement of
facts addresses all the facts that impact the conclusion and which are discussed in
the legal analysis.29 To justify the judge’s decision and reinforce the appearance of a
fair and impartial opinion, be sure that the opinion discusses the losing side’s impor-
tant facts and arguments.30

Volume 36, No.1 33

 Next, make sure that the opinion is written in a style that allows the reader to
understand the opinion and which uses simple words written in plain English. Your
“objective is not a literary gem but a useful precedent, and the opinion should be
constructed with good words, not plastered with them.”31
Some divide proofreading into stages. You can read the text once to correct gram-
mar and syntax, then to correct spelling and typographical errors, then to verify
citations and quotations and finish by formatting the document correctly. As you
become more experienced, you will notice your weaknesses and come up with your
own ways to edit and proofread, perhaps by focusing on small things first, perhaps
by focusing on large things first.
If a concept can characterize the reviewing stage, it would be thoroughness.
Review your work with attention to detail. A judicial opinion must not look unpro-
fessional.
The opinion must be clear, concise, and precise. Do not overwrite or draft trea-
tise-like opinions — something done by inexperienced law clerks who lack the confi-
dence to distinguish between the important and the trivial - between the settled and
the novel. If you understand the case, you will know what the relevant facts and law
are and you will not include irrelevant information or discuss basic concepts ad nau-
seam. A short opinion that cuts to the chase and provides only the necessary support
for the conclusion is more easily understood.32
Decisions, orders, decrees, and judgments must be understood if they are to be
obeyed. You achieve this by using simple words that convey the meaning you desire;
short sentences together with transitions; paragraphs that address one subject at a
time; and only the words needed to convey each thought. Be sure to review each
paragraph individually and in context. Reading the text aloud or reading it back-
wards can be helpful at this stage as well as spelling and grammar checkers.
Once you finish your review, do not ask someone outside the court system to
critique your draft. Another pair of eyes will offer insights on how to improve it, but
confidentiality concerns require that the opinion remain in chambers, never to be
discussed elsewhere. No one but a judge, a member of the judge’s staff or law clerk
from the court’s pool may draft or review an opinion.33
Once you have come up with your best product, hand in your draft and be pre-
pared to continue working on it through a sequence of edits and redrafts until the
judge approves the opinion. Take the editing as a learning experience and as a way
to improve the opinion, not as a personal affront. Internalize the view that decision-
making remains exclusively with the judge. The judge alone is responsible for its
content. Thus, the judge should not give you credit for your assistance. That could
lead a reader to question whether the judge or someone else decided the case.34
There are many lists of do’s and don’ts in opinion writing. For reference, we in-
clude some of the more important.

34 Westchester Bar Journal

USEFUL DO’S AND DON’TS
Consider these suggestions when writing judicial opinions:
1. Avoid legalese like “thereinafter,” “hereinafter,” “said,” “such,” and “before
mentioned.” Write in plain English.
2. Do not use Latin words or phrases if you have an English equivalent.
3. Use common Anglo Saxon words. Use short synonyms for long words.
4. Never use sexist language. Gender-neutral opinions project fairness.
5. Limit citations to the necessary sources. Cite only what you use and use
only what you cite.
6. Add pinpoint or jump citations for every case or secondary authority you cite.
7. Avoid string citations if possible.
8. Avoid footnotes except for citations or collateral thoughts.
9. Never use sarcasm, humor or condescending language.35 Avoid references to
popular culture.36
10. Avoid personal attacks or the appearance of bias or impropriety.
11. Do not be defensive.
12. Do not address everything. Discuss only the relevant facts and law.
13. Address arguments, not parties; and address parties, not their lawyers.
14. Refer to the parties consistently throughout the opinion.
15. Use Bluebook citations if you are a federal judge’s clerk, intern, or extern.
Use New York Official Reports Style Manual, nicknamed the “Tanbook,”37 if you work
for a New York State judge.
16. Avoid unnecessary detail when discussing facts and law.
17. Be honest and accurate in the facts and law. Understate. Never exaggerate.
18. Write in the positive, not in the negative.
19. Eliminate the passive voice and nominalizations.
20. Be organized: Say it once, all in one place.
21. Avoid italics, underlining or quotation marks to emphasize.
22. Make your opinion easy to read.
23. Stress content, not style.
24. Be definitive, not cowardly or tentative.
25. Decide the case quickly.

CONCLUSION
We hope these notes are helpful for your opinion writing. As with everything
else, you will improve over time and with experience. After working collabora-
tively and reediting your draft with your judge, your opinions will acquire a form
and content of which you will be proud. Good luck, and enjoy your progress.

Volume 36, No.1 35