Judicial Writing Manual - Federal Judicial Center

a higher court to understand the basis for the decision. When the decision
turns on complex facts, a more'elaborate explanation than is necessary for
the parties may be helpful to the appellate court. And when the decision
involves novel issues or a developing area of law, it is appropriate to trace
the prior development of the law and develop the legal and policy rationale
at some length. Opinions should not, however, be turned into briefs or
become a vehicle for advocacy.
Members of the general public will rarely read opinions. But reporters
from the media will communicate what they believe to be the substance of
an opinion that strikes them as being of public interest. When an opinion
addresses an issue of general public interest or is likely to attract media
attention, it should be written so as to ensure that it will be understood -
and not misunderstood. The mark of a well-written opinion in any event is
that it is comprehensible to an intelligent lay person.
Publication
All courts of appeals have adopted rules, internal operating procedures,
or other policies concerning publication and non-publication of opinions.
See generally Stienstra, Unpublished Dispositions: Problems of Access and Use
in the Courts of Appeals (FederalJudicial Center 1985). Some of the procedures
specify criteria for determining whether or not an opinion should be
published. For example, D.C. Circuit Rule 14(b) directs:
An opinion, memorandum, or other statement explaining the basis for
this Court's action in issuing an order or judgment shall be published if it
meets one or more of the following criteria:
< 1) with regard to a substantial issue it resolves, it is a case of first
impression or the first case to present the issue in this Court;
(2) it alters, modifies, or significantly clarifies a rule of law previously
announced by the Court;
(3) it calls attention to an existing rule of law that appears to have been
generally overlooked;
(4) it criticizes or questions existing law;
(5) it resolves an apparent conflict in decisions within the circuit or
creates a conflict with another circuit;
(6) it reverses a published agency or district court decision, or affirms a
decision of the district court upon grounds different from those set forth
in the district court's published opinion; or
(7) it warrants publication in light of other factors that give it general
public interest.
6