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Setting the Tone

Tightrope

Writing some opinions can be a daunting and sometimes downright unpleasant experience. Others, however, can be a pleasure, especially when the facts are unusual or offbeat.  In all cases, however, the judge or justice writing the opinion knows that case and its outcome are important to those involved.  For that reason, most judges who draft appellate opinions are careful to maintain a neutral tone when discussing the facts and the parties and save their more colorful language for dissents, concurrences, and the responses thereto.

Let’s look at State v. Nicholson, which was in the Supreme Court’s batch of opinions from 8 June 2018.  While on duty in the early morning hours of 23 December 2015, a Kernersville police lieutenant noticed a car sitting in a turn lane with no turn signal activated.  Pulling up alongside, he saw two men in the car.  One was in the driver’s seat but the other was sitting in the back seat directly behind the driver.  The back seat passenger started to draw a mask down over his face but pulled it back up when he noticed the lieutenant watching with some interest.

The lieutenant asked if everything was ok.  Both men in the car said everything was fine, though the driver made a gesture that the lieutenant couldn’t interpret.  The lieutenant asked again if they were ok and both men again said yes, though the driver shook his head “no.”  The rear-seat passenger got out of the car and the lieutenant let the driver go.  After further investigation, including a pat-down that revealed no weapon, the lieutenant permitted the rear-seat passenger to walk away.  Later that day, the driver called to tell the lieutenant that the man in the back seat had been robbing him at knifepoint. Police found a knife in the back seat of the victim’s car.

These facts seem to be about half-way between comedy and slapstick.  A police officer observes a man in the dead of night masking himself until he sees the officer.  The victim fails to tell the officer while on the scene that he needs protection from an armed robber while nevertheless sending all sorts of ambiguous signals.  The officer allows everyone to leave.  This looks like a made-to-order item for “News of the Weird.”

Yet the tone of Justice Hudson’s opinion for the unanimous Court is just right.  In setting out the facts, she must have smiled as she wrote of the lieutenant’s “[s]ensing that something was not quite right…”—you know that every internal alarm he had must have been blaring—but otherwise she let these bizarre facts speak for themselves.  And correctly so.  While we might expect the victim to have spoken up more clearly when the officer first appeared, he was being held at knifepoint by the robber while the officer was in a different car.  Similarly, while we might expect the officer to have done a little more snooping in light of the suspicious behavior he observed, that additional investigation could have led to a violation of defendant’s rights.  That issue was close; note that the Supreme Court reversed a Court of Appeal opinion which held (over a dissent by Judge Murphy) that the lieutenant lacked reasonable suspicion to detain the defendant and that the lieutenant’s subsequent identification of the defendant was unfairly prejudicial.

So while it would have been possible to write an opinion that emphasized the odd and almost comic aspects of the case, Justice Hudson remembered that nothing was funny for the people at the scene that December morning.  The victim feared for his life.  The lieutenant had to balance his interest in finding out just what was going on with both avoiding violence and overstepping his bounds as an officer of the law.  And the defendant committed an act that led to his substantial incarceration.

What’s the lesson here for practitioners?  As in court opinions, humor in a brief is often out of place and can make a brief appear flippant.  While I have seen instances where wit in a brief effectively made a point, wise practitioners use it sparingly.  More often than not, attempts at humor can undermine the serious points counsel is trying to make and harm the client’s interests.  Judges open appellate briefs expecting analysis and argument, not entertainment.  I use the same techniques in writing briefs that I used in writing appellate opinions.  I believe President Harry Truman made the technique famous.  Write what you want to write, put in in a drawer for a day or two, then read it again.  You’ll probably find that it’s a good idea to cut the lines that were the most fun to draft in the original.

–Bob Edmunds

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One Response to "Setting the Tone"

  • Beth Scherer
    June 25, 2018 - 1:07 pm Reply

    Speaking of tone, Jay O’Keeffe at the De Novo appellate blog has a new post on terms in appellate brief that annoy judges. He has a list of acceptable ways to say that your opponent is wrong, without using the wrong tone.

    Jay’s blog post finds its genesis in a 2017 survey of thousands of judges (including Supreme Court justices) regarding various writing preferences: Oxford comma, one or two spaces at the end of a sentence, acronyms, etc. The results may surprise some!

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