Write on
| Publication year | 2019 |
| Pages | 24 |
Justice Beth Robinson: A Paragon of Good Legal Writing
By Greg Johnson, Esq.
In my last two columns for Write On, I analyzed the legal writing styles of Neil Gorsuch and Brett Kavanaugh. For this column, I thought I would bring it closer to home by analyzing the legal writing style of Vermont Supreme Court Justice Beth Robinson. Beth Robinson graduated from Dartmouth College in 1986 and the University of Chicago Law School in 1989. She came to fame in Vermont as the lead attorney in Baker v. State, Vermont’s same-sex marriage case, and as the long-time chair of the Vermont Freedom to Marry Task Force. Governor Peter Shumlin appointed her to the Vermont Supreme Court in October 2011. The Vermont Senate confirmed the appointment by a unanimous vote in February 2012.
Since 2012, Justice Robinson has published over 180 opinions and dozens of concurrences and dissents. For this column, I read 25 of Justice Robinson’s opinions, 10 concurrences, and 15 dissents. Immersing myself in Justice Robinson’s jurisprudence has been a delight. She nails every important rule of good legal writing. This column will explain why Justice Robinson is a paragon of good legal writing. It will first focus on Justice Robinson’s practice of opening with a succinct and clear statement of the issue in each opinion. Next, the column will list the key principles of good legal writing as described in Plain English for Lawyers, a leading legal writing text for decades. I will then apply these principles to Justice Robinson’s writing. The column will conclude by highlighting the somewhat more dramatic writing style in Justice Robinson’s concurrences and dissents. All of this should convince you that every lawyer can benefit from emulating the writing style of the esteemed Justice Beth Robinson.
I. Clear Issue Statements
Justice Robinson excels at opening her opinions with clear and succinct statements of the issue in the case. In my last column, I praised Justice Kavanaugh for opening his opinions with attention-grabbing images or stories that draw the reader in immediately. Justice Robinson chooses a different approach, equally commendable. She opts for a more straightforward style, explaining the claims at issue with a remarkable brevity of words. This practice follows the advice of many legal writing experts. Yale Law School Professor Noah Messing, for example, says that the opening of a brief (or, in this case, a judicial opinion), should “orient readers and frame the dispute.”[1] The reader should know “within thirty seconds” what the dispute is about.[2] Justice Robinson’s opinions pass this exacting test time and time again. Space will only allow me to quote the openings of five of Justice Robinson’s opinions, but these are merely representative of Justice Robinson’s style throughout her jurisprudence.
Defendant appeals from his conviction of involuntary manslaughter following a jury trial. Defendant set up a dangerous shooting range on his property and invited others to join him in firing weapons at the site. An errant bullet struck and killed a neighbor in his nearby home. Defendant argues that: (1) a jury view of the scene presented misleading and prejudicial evidence and was not conducted with necessary procedural and evidentiary safeguards; (2) the trial judge impermissibly assumed the roles of an advocate and witness in reviewing the jury view; (3) the court erred by failing to excuse one of the jurors; and (4) his conviction is not supported by the evidence. We affirm.[3]
Justice Robinson’s writing style is no-nonsense, in contrast to the showier styles of judges like Neil Gorsuch or Richard Posner. This next opening issue statement is another typical example of that style:
Defendant David Tracy was convicted of disorderly conduct by “abusive . . . language,” 13 V.S.A. § 1026(a)(3), following a heated exchange with his daughter’s basketball coach. The trial court, following a bench trial, concluded that the defendant’s language was not protected by the First Amendment to the United States Constitution because it constituted “fighting words.” On appeal, defendant argues that the “abusive language” prong of Vermont’s disorderly-conduct statute is overbroad and impermissibly chills speech without serving a compelling interest. He further argues that, even if the statute is constitutional on its face, the speech for which he was convicted in this case is constitutionally protected. We agree that the speech for which defendant was convicted is beyond the reach of the abusive-language prong of the disorderly-conduct statute, and reverse his conviction.[4]
In legal writing, brevity is the soul of clarity, to wit:
This case raises a facial challenge to Vermont’s statute banning disclosure of nonconsensual pornography. 13 V.S.A. § 2606. We conclude that the statute is constitutional on its face and grant the State’s petition for extraordinary relief.[5]
Justice Robinson’s introductions serve as a kind of executive summary for the busy reader, capturing the entire case in a paragraph:
Neighbors of a proposed solar electric-generation facility appeal a decision of the Public Utility Commission (PUC) approving the issuance of a certificate of public good for the project. At the heart of their appeal is a challenge to the PUC’s conclusions that this project—called the Apple Hill project—would not unduly interfere with the orderly development of the region and would not have an undue adverse effect on aesthetics. Both of these conclusions rest in substantial part on the PUC’s conclusions that the select-board of the Town of Bennington took the position that the Apple Hill project complied with the applicable Town Plan, and that the 2010 Town Plan did not establish a clear, written standard. Because the evidence and the PUC’s findings to not support these conclusions, we reverse and remand.[6]
My final example of Justice Robinson’s introductions comes from a case in which the Court held that emotional distress damages are not available in legal malpractice claims:
This case involves a jury award of emotional distress and economic damages in a legal malpractice action. Defendant challenges the damages award on the grounds that emotional distress damages are not available in a legal malpractice case and that the award of economic damages equal to the amount plaintiff paid to settle the underlying case was improper because plaintiff failed to establish that the underlying settlement was reasonable. We reverse as to the award of emotional distress damages and affirm as to the economic damages award.[7]
Justice Robinson consistently opens her opinions with a concise issue statement. After reading just a few sentences, the reader has been briefed on the dispute and ready to tackle the legal issues in greater detail.
II. Key Principles of Good Legal Writing
In her introductions and in the body of her opinions, Justice Robinson follows all the key principles of good legal writing. Though there are many competing legal writing guides on the market, they all focus on best practices for creating dynamic legal writing by using vivid verbs in the active voice and streamlined sentences with little to no wordiness. I use Plain English for Lawyers by Richard Wydick and Amy Sloan in my Legal Writing I class because it explains these key principles in a concise text (just 162 pages) with helpful examples, practice exercises, and a sprinkling of humor to keep the reader engaged. Here are the main lessons of the book:
• Omit Surplus Words
• Avoid Nominalizations
• Write in the Active Voice
• Use Short Sentences
• Avoid Wide Gaps Between the Subject, the Verb, and the Object
• Use Strong Nouns and Verbs to Persuade[8]
I will next show how Justice Robinson consistently follows these principles.
Omit Surplus Words. Every text cautions against verbosity, but Wydick and Sloan offer a number of constructive ways to omit surplus words. First, they distinguish between “working words” and “glue words” and suggest the balance should be weighted in favor of working words. Working words carry the meaning of the sentence, while glue words hold the sentence together. Glue words are necessary, Wydick and Sloan are quick to point out, for proper grammar, but a preponderance of prepositions, conjunctions, and other glue words “add unnecessary bulk and bog down your writing.”[9] Here is one of their examples, with the working...
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