Words. The Reavley-style Per Curiam

• Author: Bryan A. Garner
• Pages: 26-27

Shifting popular opinion

In 2018, the ABA Journal updated

and expanded its list of 25 Greatest

Legal Movies. The new list includes:

RBG (2018), the documentary about

Ruth Bader Ginsburg’s legal  ght for

gender equality; Marshall (2017),

about a young Thurgood Marshall’s

collaboration with a Connecticut

lawyer battling for a poor black

defendant wrongly accused of raping

a wealthy white woman; and Loving

(2016), about Richard and Mildred

Loving’s successful struggle in

collaboration with an American Civil

Liberties Union lawyer to overturn

Virginia’s anti-miscegenation law.

These lawyer-favorites are often

about heroic lawyers and other profes-

sionals vindicating the rule of law—al-

though the new movies now recognize

fundamental systemic injustices.

Do these mostly af rmative movies

signify the swing of the pendulum of

public opinion toward belief in the

ef cacy of the rule of law in America?

Honestly, I doubt it.

What can lawyers do about reshap-

ing popular opinion? We can follow

Sammons’ admonitions about the

importance of what we say and how

we speak in our professional practices.

And with our actions, we can follow the

examples set by the lawyer-heroes in the

movies that lawyers still seem to love. Q

Philip N. Meyer, a professor at Vermont

Law School, is the author of Storytell-

ing for Lawyers.

Practice Matters | WORDS

When I began clerking

for Judge Thomas M.

Reavley of the 5th

U.S. Circuit Court of

Appeals back in 1984–1985 , the three

outgoing clerks showed me the ropes.

Having served on the Supreme Court of

Texas for nine years and later appointed

by President Jimmy Carter to the 5th

Circuit , Reavley had his set and con-

 rmed practices.

The most important thing was to try

to master “the Reavley per curiam”—a

feat that no clerk had ever fully mas-

tered. It seemed that only the judge

himself could satisfactorily write such

an opinion. It’s a short, one- to two-

page opinion that brie y applies clear

law to straightforward facts, achieving

great economy by saying no more than

necessary. As with all per curiam opin-

ions, they’re unsigned; they’re issued

by the entire panel. One main rationale

for a per curiam opinion is that the case

presents only routine issues that merit

no in-depth discussion.

Not every case, of course, can be

handled with this kind of brevity. But

Reavley has long detested the prevalent

judicial habit of overwriting opinions

by needlessly rehashing the entire his-

tory of an area of law before deciding

the case at hand. He believes that many

lengthy opinions result from either

outsize judicial egos or wordy law

WORDS

The Reavley-style Per Curiam

Legal writers can learn a lot from these unparalleled unpublished opinions

BY BRYAN A. GARNER

Judge Thomas Reavley

clerks ambitious to make their mark

by transforming judicial opinions into

something resembling bad law-review

articles. He also thinks that overlong

opinions confuse the state of the law.

And so he developed his own dis-

tinctive style of per curiam opinion—

succinct but intellectually satisfying,

bare-bones but never mystifying. He

didn’t waste the reader’s time.

Although any per curiam opinion

is by the full panel, lawyers in the 5th

Circuit have come to associate these

shorter opinions with Reavley, who

originated the style in that court. And

because he has sat over the years with

most of the federal circuit courts, feder-

al practitioners throughout the country

have become familiar with the style.

Mind you, they aren’t intended for

publication.

They all have a footnote appended:

“Under 5th Cir. R. 47.5, the court has

determined that this opinion should

not be published and is not precedent

except under the limited circumstanc-

es set forth in 5th Cir. R. 47.5.4.”

The opinion that follows is a one- to

three-paragraph disposition of about

100 to 150 words.

How it’s done

Time for illustrations. A typical example

is the 2015 case of Zeising v. Shelton.

Here’s the full opinion :

Philip

Meyer

Photo by Nick Teixeira/Baylor Law

ABA JOURNAL | FEBRUARY–MARCH 2020

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