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Hail To The Chief: In The Interest of E.R.

You know, I hear all the time about what a great advocate and Supreme Court practitioner Chief Justice Roberts was.

And one cannot help but admire the quality of his writing or the clarity of his prose, whether one likes the outcome or not.

But you know what? We've got a chief justice here in Texas too. And for my money, Chief Justice Jefferson is one of the best, clearest, and most persuasive writers around.

What makes his writing work? What makes it effective? His recent opinion for the court, In the Interest of E.R., is a fine example. After the jump, I'll offer my humble homily on what makes good writing good, and we'll use the Chief as an example.

Follow the Chief, and you can make your writing gooder too.  

What makes good writing work? How do you communicate the information a reader needs with the minimum amount of effort by the reader and the maximum amount of persuasive force.

One of things that gets the job done is an effective introduction to orient the reader. (Go here or here or here or here for previous posts on this topic. Yeah, I think this is important).

Without an introduction, a reader can feel kidnapped and dropped off in the middle of the night on the side of the road to find their way home alone. With an introduction to highlight what the issue is, how the issue is decided, and why, and the reader knows where they are going and why.

One is a felony. The other is a day trip. You make the choice.

In re a great example of an effective intro. Chief Justice Jefferson not only reveals very clearly what the issue is, but he makes a plug for why the issue is important and why the court reached the decision it reached:

When the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures. The most basic of these is notice. If the State cannot deliver notice in person, it may try other means that will likely reach the parent. We consider today whether serving the parent in a newspaper advertisement, “a poor and sometimes a hopeless substitute for actual service,” is constitutionally acceptable when the State knew the mother’s identity, was in regular contact with her, and had at least one in-person meeting with her after it sued to terminate the legal rights to her children. We conclude that the substituted service was poor, hopeless, and unjustifiable under these circumstances.

With that, you can hardly imagine the issue coming out any differently. Mind you, this is a very, very unsympathetic parent who may well, and with justification, ultimately lose her parental rights. But with that, the rest of the opinion makes sense. If you are talking to the mom, whether she's a good mom or a bad mom, substituted service is "poor, hopeless, and unjustifiable."

What else makes the opinion work? The story. Regular readers will know how often I rant on story (like this and this).

Cases involving notice, like this one, turn on who told what to whom and when. What did she know and when did she know it? Written poorly, the factual section of the opinion becomes a maze of dates worthy of a football coach's multiple choice history quiz. The reader is forced to get out a piece of paper or a calendar and construct a time line.

But written well, the events are highlighted for their importance in the story by showing their proximity to other events. THAT is how Chief Justice Jefferson does it. Read the fact section for In re E.R. and you will find nary a sentence that begins with the trial lawyer-eze like "On June 17, 2007 . . . ." Instead, you will find sentences like:

Several months after removing L.R.’s four children from her home and becoming their temporary managing conservator, the Department of Family Protective Services petitioned the trial court to terminate L.R.’s parental rights. . . .

The Department published the citation, and the trial court conducted a final hearing. L.R. did not appear. The hearing transcript spans twelve double-spaced pages. . . . .

[The case worker] stated that L.R. had visited the children at the Department’s offices a month before the termination hearing. . . .

Finley testified that the children had been living with her for approximately six months, that they were happy, and that she planned to adopt them. . . . .

The trial court terminated L.R.’s parental rights as well as those of the putative fathers, and it appointed the Department permanent managing conservator.
L.R. moved for a new trial within two years of the judgment. . . .

Three months after briefing had been completed, the Department filed an amended brief, now arguing that section 161.211 absolutely barred challenges made more than six months after the order was signed, . . . .

I got curious. Did the parties give the court briefs that logically set forth the story with relative dating? Nope. The legal analysis in the briefing is clear and well written, but nobody set for the story. The lawyers just could not resist giving a recitation of the dates in their pleadings when none of the dates actually matter--only the order in which they occurred and the time that passed between them.

On the rare occasion that the Chief feels that precise dating is necessary, he either drops it to a footnote, or puts it into a portion of the sentence that de-emphasizes its importance and leaves the flow intact. 

(This, too follows my Nerdlaw convention of using footnotes to consciously de-emphasize material.)

It's not like Chief Justice Jefferson needs my approval. In re E.R. is the law whether it's well-written or not. Nevertheless, I give it high marks and would note that one can open any random opinion by the Chief and find this same sort of thing: the law clearly stated and easy to read.

So, there you have it, campers. If you want to do it right, find someone who already knows how and see what they do. Then, go thou and do likewise.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume II, Number 194

About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...