Written opinions in state intermediate appellate courts: current landscapes and the AI horizon

• Pages: 273-311
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Aliza Milner

Written Opinions in State Intermediate Appellate

Courts: Current Landscapes and the AI Horizon

ALIZA MILNER*

ABSTRACT

This article explores the writing of opinions in forty-two state intermediate

appellate courts (SIAC). First, the article summarizes the history of written

opinions in SIACs and surveys the rules that states have developed for when

and what SIACs write. These rules differ, though, which leads to questions

about why we permit, and even encourage, limits on SIAC explanatory writing.

The second section of the article explores four common justif‌ications for these

limitations: correcting error entails less writing than developing law; writing is

not needed for deciding appeals; law clerks write most SIAC opinions; and

writing hampers eff‌iciency and productivity. I conclude that none of these justi-

f‌ications support limitations on explanatory writing in SIACs.

Nonetheless, the f‌lawed justif‌ications for the current landscape of SIAC writ-

ing are relevant in the AI horizon. The third section of the article considers how

each of the justif‌ications aligns with AI writing. Truly, courts are at a cross-

roads. If SIACs move towards the AI horizon ref‌lexively, maintaining the same

writing rules and practices they have now, decisional quality may decline. But,

if SIACs take this opportunity to integrate AI, evaluate their standards of qual-

ity, and revisit their writing rules, their work product could improve. These

courts can better meet the civic purpose for which they were created.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274

I. HISTORY AND FEATURES OF WRITTEN OPINIONS IN SIACS. . . 276

A. HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

B. FEATURES OF SIAC WRITING . . . . . . . . . . . . . . . . . . . . . . 281

* Teaching Professor and Director of Legal Communication and Research at Syracuse University College

of Law. Thank you to Syracuse University College of Law for a research grant supporting this project, to

Joseph Schuler for excellent research assistance, and to the editors of the Georgetown Journal of Legal Ethics

for thoughtful edits. And thank you to Daniel Kornfeld for his guidance and support from beginning to end.

273

II. COMMON JUSTIFICATIONS FOR LESS EXPLANATORY WRITING

IN SIACS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288

A. CORRECTING ERRORS REQUIRES LITTLE EXPLANATION. 289

B. WRITING IS NOT NEEDED FOR DECIDING APPEALS . . . . . 292

C. LAW CLERKS WRITE MOST SIAC OPINIONS . . . . . . . . . . . 298

D. WRITING HAMPERS EFFICIENCY AND PRODUCTIVITY. . . 300

III. SIAC WRITING IN THE AI FUTURE . . . . . . . . . . . . . . . . . . . . . 305

A. AI AND THE CORRECTING ERROR JUSTIFICATION . . . . . . 306

B. AI AND THE WRITING IS UNNECESSARY JUSTIFICATION . 306

C. AI AND THE LAW CLERK JUSTIFICATION . . . . . . . . . . . . . 307

D. AI AND THE EFFICIENCY AND PRODUCTIVITY

JUSTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310

INTRODUCTION

This article explores the writing of opinions in forty-two state intermediate

appellate courts (SIAC). It explains the rules that states have developed about

when and what SIACs write. Not all the rules are the same, though, with notewor-

thy patterns and variations across the country. Nine states, for example, allow

SIACs to decide appeals with no writing at all, and several more encourage a cir-

cumscribed, short-form opinion. That raises questions about why we permit, and

even encourage, limits on SIAC explanatory writing. This article considers four

common justif‌ications for those limits. Ultimately, these justif‌ications are unper-

suasive because explanatory writing is important for SIACs, just as it is important

for legal analysis in other courts.

If I had completed this article in 2021, it likely would have been suff‌icient for

me to describe the landscape of SIAC rules and evaluate the justif‌ications for less

explanatory writing. The emergence, however, of Artif‌icial Intelligence (AI),

including Generative AI, lifts our eyes from the landscape in front of us to the ho-

rizon just beyond. AI is changing legal writing in practice and education.

1

AI will

1. See, e.g., ABA Comm. on Ethics & Pro. Resp., Formal Op. 512 (2024) (discussing the ethical challenges

that Generative Artif‌icial Intelligence poses for lawyers); Jonathan H. Choi, Amy Monahan & Daniel

Schwarcz, Lawyering in the Age of Artif‌icial Intelligence, 109 MINN. L. REV. 147 (2024) (testing the effect of

AI assistance on law student legal analysis); Steven R. Smith, The Fourth Industrial Revolution and Legal

Education, 39 GA. ST. U. L. REV. 337 (2023) (chronicling recent technological changes for legal practice and

education); Eugene Volokh, Chief Justice Robots, 68 DUKE L. J. 1135, 1156-59 (2019) (considering the poten-

tial of “AI judges”).

274 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 38:273

change how courts write. Accordingly, this article considers how current SIAC

rules may interact with AI capabilities.

Section I summarizes the history of written opinions in SIACs. It traces the

shift in the United States from a culture of oral advocacy to written advocacy, as

well as the meandering history of reporting and publishing opinions. Section I

then explains current writing rules for the states that have SIACs. It details the

states that require writing and those that do not, and it details the rules and criteria

that govern when and how SIACs write.

Section II explores SIAC writing at a deeper level. Given the writing rules, it

seeks to understand why states allow—and sometimes demand—less explanatory

writing. I consider four justif‌ications. First is the justif‌ication that SIACs do not

need to write substantively because they merely correct error, rather than develop

law. Second is the justif‌ication that writing is not necessary for appellate deci-

sion-making. The idea is that appellate courts can render decisions based only on

the parties’ arguments and the trial court’s decision. A third justif‌ication is that

law clerks, not judges, write most SIAC opinions, so little is lost with less explan-

atory writing. And fourth, I consider whether eff‌iciency and productivity justify

less writing. In the end, I conclude that none of these justif‌ications support less

explanatory writing in SIACs, and they may harm the decisional process if they

promote long, rote, or tedious SIAC writing. Rather than prescribe when SIACs

write or the forms of their writing, states and courts should focus on the quality of

written opinions. A meaningful, responsive opinion may be short. Indeed, it may

be shorter than a template product built on repetition and empty formalism.

Section III of the article considers how each of the four justif‌ications align with

AI writing, as known today. Courts face an important choice. If they move

towards the AI horizon ref‌lexively, maintaining the same writing rules and prac-

tices they have now, decisional quality will decline. But if SIACs take this oppor-

tunity to integrate AI, evaluate their standards of quality, and revisit their writing

rules, their work product could improve. They can better meet the civic purpose

for which they were created, and they can respond more meaningfully to the audi-

ence for whom they write.

Finally, it is worth highlighting why SIACs deserve study. SIACs around the

country are work horses, deciding many more appeals than state courts of last

resort. They are the only appellate experience for most litigants in state court,

given that courts of last resort generally are empowered to deny certiorari.

2

SIAC

review is often plenary, which means they decide all types of legal disputes—

state and federal—that touch upon all aspects of life.

3

And they complete this

2. See Edward W. Najam, Jr., Caught in the Middle: The Role of State Intermediate Appellate Courts, 35

IND. L. REV. 329, 330 (2002).

3. See Tracey E. George & Albert H. Yoon, Measuring Justice in State Courts: The Demographics of the

State Judiciary, 70 VAND. L. REV. 1887, 1895 (2017) (“State courts are open to the full range of disputes that

arise in this country.”).

2025] CURRENT LANDSCAPES AND THE AI HORIZON 275