3.3Written Opinions1
The best opinion is clear, concise, and written in the active voice. This style has been termed the “agent/action” style. This writing style adopts the mandates of the plain language movement. Each sentence assigns responsibility, defines action, and states its consequences. In the following example, the second sentence illustrates the characteristics of the agent/action style:
•There was aggression in appellant Jones’s pursuit of appellee Smith.
•Appellant Jones pursued appellee Smith aggressively.
Avoid footnotes, personalizing the argument, and the passive voice. Write to the inevitable conclusion.
Courts may reference the Michigan Appellate Opinion Manual to ensure opinions are consistent in style, structure, and format with respect to quotations and citations of authority.
Opinion writing involves four basic steps: research, oral argument, planning the opinion, and writing the opinion.
1.Research
Become familiar with the case by reading the briefs and the case file. Determine whether the briefs appear to accurately state the applicable law. Do any additional research necessary after reading the briefs.
2.Oral Argument
Although oral argument is not always required, a final decision should not be made before oral argument because occasionally the attorneys raise new issues or information that affects the course of the opinion. However, a rough draft of the opinion can usually be drafted before oral argument.
3.Planning the Opinion
Develop an outline for the opinion being drafted and have a clear idea of where information will fit into the outline. Determine what issues will be decided. If the case turns on a procedural issue, do not plan an opinion addressing gratuitous substantive issues. However, if the result would be the same, stating so makes the opinion even stronger.
Also, consider your audience and the aim of the opinion. Is the decision primarily for the attorneys, or will another court or administrative agency be looking to the opinion for guidance?
If assisted by a law clerk, discuss the proposed opinion with them, examining the structure, rationale, and the result.
4.Writing the Opinion
Committee Tip:
Drafting an opinion based on bad briefing tends to lead to a poorly written opinion. It may be best to write “from scratch” rather than working from poorly researched, thought out, or written briefs.
An opinion consists of the following parts, which may or may not be labeled.
Introduction: An opening section used to establish the identity of the parties; state how the case came about; identify the dominant issue; and state the court’s resolution of the issue. Starting the opinion in this manner has two advantages: (1) the relevance of the facts that follow is immediately apparent, and (2) the opinion is naturally focused on the crucial issues in the case and is built on that foundation.
Statement of Facts: The statement should identify the who, what, where, when, why, and how of the case in chronological order. It should include all facts relevant to the outcome of the decision in clear, concise language. The statement of facts constitutes the facts as found by the court. Avoid quotations, excerpts from pleadings, and citations. Facts included in the written opinion should be vital and accurate. It is useful to state what facts are not in dispute. Including only essential facts saves the appellate court time and allows it to quickly become familiar with the case. Erroneous “facts” undermine the credibility of the trial court even if the errors are not outcome-determinative.
Issue(s): Sometimes it will be helpful to include a separate section that states the issue(s) being addressed by the court. If used, the statement of the issue(s) should be clear and concise. It is useful to state the issues that are not being argued. Discuss and dispense with multiple issues in order of importance/difficulty. Do not raise or discuss issues that have not been raised by the parties. Recognize the arguments of the losing party, but do not grant them undeserved attention.
Standard of Review: This section should clearly state the standard the court is applying to the facts in the decision. Citations are a vital part of this section of the opinion.
Discussion (Analysis or Conclusions of Law): This section should start with a concise statement or paragraph setting out the law applicable to the issue at hand. If there is more than one issue, a statement of the applicable law should immediately precede the discussion. Use citations, but avoid string citations and lengthy quotations. After stating the applicable law, apply the law to the facts as stated in the statement of facts, ending with your conclusion.
Conclusion: Succinctly restate a conclusion that includes the reasons for the decision. The restatement is particularly important if multiple issues were addressed in the opinion.
Judgment/Order: The court must enter an order upon issuing an opinion. See generally MCR 2.517(A)(1); MCR 6.427; MCR 7.114(B) (note that this is a non-exhaustive list; other court rules may exist that address order/opinion requirements in specific types of proceedings).
Committee Tip:
An order should conclude with a statement that orders the decision being made. Typical language for ordering a decision is: “It is so ordered.” While using this phrase is one way to conclude a variety of decisions (motion, trial, appeal, etc.), there is no authority requiring the use of this exact verbiage.
5.Notice of Opinion in Civil Action
“The court clerk must deliver, in the manner provided in MCR 2.107[2], a copy of the judgment, final order, written opinion, or findings entered in a civil action to the attorney or party who sought the order, judgment, opinion or findings.” MCR 8.105(C). Except where e-Filing has been implemented, the clerk may charge the reproduction fee authorized by the court’s local administrative order under MCR 8.119(H)(8) if an attorney or party does not provide at least one copy when filing a proposed order or judgment. MCR 8.105(C).