Law Clerk Jessica Horne '10 on how "writing the opinion becomes the ultimate test of the soundness of the decision"

Jessica Horne,
Law Clerk to the Honorable Elaine Kaplan
of the United States Court of Federal Claims
and Former Peer Writing Consultant

During my late nights writing political science or philosophy papers as a Bucknell student, I discovered that writing, at least for me, involves more than simply communicating ideas. I never fully understand an idea until I translate it into words, sentences, and paragraphs. Finding a transition from one paragraph to another requires me to contemplate the nuanced relationship between the ideas in each paragraph. I also realized that the communicating function of writing and the understanding function of writing reinforce one another: the better I communicate an idea—the more accurate the vocabulary I use to describe it and the more concisely I explain it—the better I understand it, and vice versa.

While discovering all of this in college was an important lesson for me, nowhere has the function of writing as both communicating and understanding become more clear than in my current job as a law clerk for a federal judge. In this position, my primary duty is to assist the judge in deciding each of her assigned cases—that is, clarifying the facts of the case; determining whether, under those facts, the law entitles the plaintiff to a remedy; and, if so, gauging the appropriate remedy. My method of tackling this demanding job involves researching the law and studying the reasoning of other judges in similar cases, but writing the first draft of the opinion in the case accomplishes the bulk of the work. The particular logic of a decision takes shape only when the process of writing forces me to consider how to organize the opinion into sections and paragraphs and what grammatical structure to use when expressing a complex idea in a sentence.

Complicating this process, when I write a draft of an opinion, the ideas that I am communicating are not necessarily my own. Although the judge and I usually agree on the correct outcome in a case, each of us follows a unique path in arriving at that outcome, and the written opinion must reflect the judge’s approach to the issues. When I struggle to write a certain section in the draft, often that struggle signals that I have not completely understood the judge’s approach. Occasionally, however, difficulty writing the opinion has signaled that the conclusion we initially had in mind is the wrong one. Thus, writing the opinion becomes the ultimate test of the soundness of the decision.

After I finish my draft of the opinion, the judge rewrites it almost entirely. At the beginning of my clerkship, I worried that the quality of my writing must not meet the judge’s expectations. I now realize, however, that, for the judge too, writing is the process by which she thinks through and fully understands the issues in a case.  This experience as a law clerk has shown me that all writers, from college students to federal judges, labor through the process of distilling relatively crude ideas into thoughtful and precise prose.