The "Write" Way: A Judicial Clerk's Guide To Writing For The Court

University of Baltimore Law Review
Volume 38
Article 9
Issue 1 Fall 2008
2008
The "Write" Way: A Judicial Clerk's Guide to

Writing for the Court
Jennifer Sheppard
Mercer University Walter F. George School of Law
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Sheppard, Jennifer (2008) "The "Write" Way: A Judicial Clerk's Guide to Writing for the Court," University of Baltimore Law Review:
Vol. 38: Iss. 1, Article 9.
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THE "WRITE" WAY: A JUDICIAL CLERK'S GUIDE TO
WRITING FOR THE COURT
Jennifer Sheppardt
I. INTRODUCTION
So, you have landed your dream job, clerking for a judge. You are
likely excited because you have been told that the clerkship will be a
great learning experience. You cannot wait to obtain direct insight
into the operation of the judicial process or for the practical
experience that you will gain from learning how the court operates
from inside the judge's chambers. But mixed with this excitement is
a little worry. One question looms before you-what exactly do
judicial clerks do? What will the judge expect you to do during your
time in chambers?
It is difficult to generalize about the role of a judicial clerk. 1 The
duties of a judicial clerk are determined by each individual's
employing judge. 2 A judicial clerk's duties are "best described as
doing whatever the judge asks." 3 While individual judges vary
greatly in what they ask of their clerks, some commonalities exist. 4
Generally, judicial clerks conduct legal research, review the record
before the court, verify citations to authority in the litigants' briefs,
t Jennifer Sheppard is an Assistant Professor of Law at Mercer University School of

Law. Professor Sheppard earned her B.A. from Ohio University and her J.D. from
Capital University Law School. She would like to thank Professors Patrick Longan,
Linda Jellum, and Suzianne Painter-Thome for their assistance and insightful
comments on earlier drafts of this article. Professor Sheppard would also like to thank
Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit, Judge John
D. Holschuh and Magistrate Judge Norah McCann King of the U.S. District Court for
the Southern District of Ohio, and Lisa Woodward, law clerk to Judge Holschuh for
their assistance on this article. Finally, she would like to thank Mercer University
School of Law and the Association of Legal Writing Directors for their generous
financial assistance.
l. Jefferson Lankford, Judicial Law Clerks: The Appellate Judge's "Write" Hand, in
LOUIS J. SIROCO, JR., JUDGING: A BOOK FOR STUDENT CLERKS 17, 17 (2002).
2. See Robert Braucher, Choosing Law Clerks in Massachusetts, 26 VAND. L. REv. 1197,
1200 (1973).
3. Lankford, supra note I, at I 7.
4. !d.
73
74 Baltimore Law Review [Vol. 38
administer the docket, 5 serve as a "sounding board[] for the judge's

ideas," 6 play devil's advocate, and serve as the judge's confidant. 7
Furthermore, while not nearly as exciting as the clerk's other duties, a
judicial clerk may be asked to perform more mundane tasks, such as
maintaining the chambers' library or performing administrative
work. 8 Finally, and most importantly, clerks may also be asked to
write the initial drafts of a judge's decision. 9
· Thus, judicial clerks serve an integral role in the decision-making
process. They "are the extra hands and legs, which, when coupled
with an inquiring mind, are indispensable to a judge in the
performance of his most difficult obligation," issuing decisions. 10
Given that a judicial clerk is essentially an extension of his or her
judge, your actions reflect on the judge. 11 Thus, it is important that
you act professionally in all matters and refrain from embarrassing
the judge in any fashion during your time with the court. Judges
often rely heavily on their clerks' research and writing skills when
issuing decisions, some of which are published in reporters and
become binding precedent for future courts, or in drafting documents
that become part of the court record and may be subject to appellate
review. Consequently, legal research and drafting documents for the
court are the tasks where the risk of embarrassing the judge is
greatest. This means that your written work product should be
beyond reproach. To that end, this article will examine the types of
documents judicial clerks are most commonly asked to draft for a
judge-opinions, bench memoranda, jury instructions, and orders.
Keep in mind though that the documents a judge may ask a clerk to
draft will vary depending on whether the clerk is at the trial or
appellate level.
Part II of this article examines how to properly draft a judicial
opinion. This part identifies what an opinion is and what its purposes
and goals are. This part also provides tips regarding the steps to take
when preparing to draft an opinion, and offering advice for drafting
5. Gerald Lebovits, Judges' Clerks Play Varied Roles in the Opinion Drafting Process,
76 N.Y. ST. B.J. 34, 34 (July/Aug. 2004) [hereinafter Judges' Clerks Play Varied
Roles].
6. Lankford, supra note I, at 19.
7. Judges' Clerks Play Varied Roles, supra note 5, at 34.
8. Frederick G. Hamley, Sample Instructions to Law Clerks, 26 VAND. L. REv. 1241,
1249 (1973).
9. Lankford, supra note I, at 18.
10. Eugene A. Wright, Observations of an Appellate Judge: The Use of Law Clerks, 26
VAND.L.REV. 1179,1181 (1973).
II. Judges' Clerks Play Varied Roles, supra note 5, at 34.
2008] A Judicial Clerk's Guide to Writing for the Court 75
the document, including identifying the tone a clerk should use and a
format to follow when drafting an opinion. Part III of this article
discusses how to properly draft a bench memorandum. This part
identifies what a bench memorandum is and how the judge will use
such a document. It also provides tips for preparing to draft a bench
memorandum and offers advice for drafting the memorandum. Part
IV addresses how to properly draft jury instructions, which only trial
court clerks are asked to draft. This part explains what jury
instructions are and offers tips on how to draft the instructions. Part
V examines how to properly draft judicial orders by examining what
the purpose of an order is and offering advice on drafting an order.
After reading this article, you will be familiar with opinions, bench
memoranda, jury instructions, and orders. Thus, when the judge asks
you to draft one of these documents, you will be more confident in
your ability to do so.
II. OPINIONS
Given that a judge's most difficult obligation is in issuing
decisions, 12 law clerks at both the appellate and trial levels are often
asked to draft judicial opinions. 13 An opinion is a statement of
reasons explaining why and how the decision was reached 14 and
providing the authorities upon which the decision relies. This
document tells the litigants, particularly the losing party, why the
court reached the decision that it reached with regard to a particular
motion or hearing, at the trial level or with regard to an appeal. 15
Thus, a judicial opinion "tell[s] the parties why the winner won and
the loser lost." 16 In addition to justifying the decision to the losing
party, an opinion also justifies the court's position to the public. 17
Further, an opinion provides guidance to future litigants and to the
courts, 18 which are bound by stare decisis.
12. Wright, supra note 10, at 1181.

13. George Rose Smith, A Primer of Opinion Writing for Law Clerks, 26 VAND. L. REV.
1203, 1203 (1973) [hereinafter Smith, Opinion Writing for Law Clerks].
14. RUGGERO J. ALDISERT, OPINION WRITING § 2.10, at 22 (1990) [hereinafter OPINION
WRITING].
15. !d.
16. Gerald Lebovits, Alifya V. Curtin & Lisa Solomon, Ethical Judicial Opinion Writing,
at 8 (2006), http://law.bepress.com/expresso/eps/1743 [hereinafter Ethical Judicial
Opinion Writing].
17. !d.
18. !d. at 9.
"[O]pinions are simply explanations for judgments-essays written

by judges explaining why they recorded the judgment they did." 19
However, opinions written at the trial and appellate stages have
slightly different purposes. At the trial stage, the purpose of an
opinion is to justify the judge's decision on a motion or the outcome
of the case at a bench trial. 20 At the appellate stage, on the other
hand, judges write opinions to resolve controversies in their
jurisdiction or to correct an erroneous trial court opinion. 21
A. Preparing to Draft the Opinion
When a judge assigns you a case, the judge may require you to
draft a memorandum for the judge to use in drafting an opinion or the
judge may require you to produce a first draft of the opinion. Let's
assume the judge asks you to produce a first draft of the opinion.
When the judge assigns the case, the judge's instructions may be very
broad. 22 The judge may simply hand the case file and the briefs to
you and instruct you to produce a first draft of the opinion. 23 In this
situation, you are expected to review the case and work through the
issues yourself. 24 Once you have reviewed all the pertinent
documents, draft the opinion.
On the other hand, at the time the judge assigns the case, the judge
may conference with you to provide some guidance on the matters to
be resolved. During this conference, the judge may identify the
issues to be decided and emphasize salient points that he or she
believes to be of particular importance. 25 When this conference
concludes, you ought to have some idea of how the issues are to be
resolved, even if you are not certain how to legally justify those
results. 26 You must resolve for yourself the problem of how to justify
the results. 27 If the judge discusses the case with you, this conference
should be the basis for the opinion that you draft. 28 However, if you
discover that the judge was mistaken on either a factual issue or a
19. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for
Judgments, 15 CARDOZO L. REv. 43, 62 (1993).
20. Nancy A. Wanderer, Writing Better Opinions: Communicating with Candor, Clarity,
and Style, 54 ME. L. REv. 47, 58-59 (2002).
21. See id. at 59.
23. Smith, Opinion Writing for Law Clerks, supra note 13, at 1203; Wright, supra note
10,at1190.
25. Smith, Opinion Writingfor Law Clerks, supra note 13, at 1204.
26. !d.
27. !d.
28. !d. at 1203.
point of law, it is imperative that you bring the matter to the judge's
attention. 29 While the judge has the final choice on an issue, it is
your duty to prevent the judge from making a mistake. 30
Regardless of the depth of the judge's instructions at the time the
case is assigned, you must complete certain tasks when preparing an
opinion. You should begin by reviewing the briefs of the litigants
and gaining a clear understanding of the issues. The first step in
preparing to draft an opinion is to read the litigants' articulation of
the issues. 31 Once you have identified the issues as presented by the
litigants, you must read the analysis section of the briefs and
determine for yourself if the issues as articulated by the litigants are,
in fact, the issues or if the issues are different. Sometimes, the issues
will be fairly close to those identified by the litigants. At other times,
the issues will be completely different. It is important that you
determine for yourself what the issues are. If your thinking is fuzzy
regarding the issues, this will negatively impact the rest of the
process.
Once you have a clear grasp of the issues, the second step you
should take when preparing to draft an opinion is to review the record
to determine which facts are relevant. 32 The facts should be obtained
from the record itself, never from the litigants' briefs. 33 While the
adversary process often skews counsel's rendition of the facts in
favor of his or her client, the court's opinion should show no trace of
partisanship. 34
After the pertinent facts have been gathered from the record, the
third step you should take is reviewing the authorities relied upon by
counsel for the litigants to determine whether they were accurately
interpreted by counsel. 35 You should also update the authorities to
ensure that they remain good law and that no other applicable
authorities have been issued since the briefs were filed. Furthermore,
you should conduct some additional legal research to determine that
counsel for the litigants did not overlook any applicable authorities. 36
29. /d. at 1204.

30. See id.
31. See id.
32. See id.
33. /d.
34. !d.
35. George Rose Smith, A Primer of Opinion Writing, for Four New Judges, 21 ARK. L.
REv. 197,201 (1968) [hereinafter Smith, Opinion Writingfor New Judges].
36. Smith, Opinion Writing for Law Clerks, supra note 13, at 1205.
After reviewing the briefs, the issues, the facts, and the governing
law, only one step remains before you are prepared to begin drafting
the opinion--creating an outline. 37 An outline is the best way for you
to organize your thoughts and to ensure that nothing relevant is
unintentionally omitted from the opinion. 38 The outline, which gives
you a format for drafting the opinion itself, must be more than a
skeletal outline that simply identifies the order in which the issues
will be discussed. In order for the outline to be an effective tool, it
must be fairly detailed. 39 The outline should not only identify the
issues, but should also identify the pertinent authorities that relate to
each issue and the relevant facts from the case currently before the
court. In addition, it should briefly state or summarize the reasoning
that supports the conclusions reached with regard to the issues.
Do not make the mistake of skipping this step in the process to save
time. Drafting an outline forces you to organize the materials in a
very detailed manner. While transferring the information floating
around in your head to paper or a word processor, any problems with
organization will become clear. It will be much easier to adjust your
thinking and organization at the outline stage than while revising the
text of the opinion itself. Once a writer puts words in print, he or she
often becomes wed to those words, even when they are problematic
due to organization or substance. By dealing with this same problem
at the outlining stage, rather than the revision stage, you will not only
save yourself time, but also some grief.
B. Drafting the Opinion
1. Format of the Opinion
Once you have completed the necessary preparatory steps, you are
ready to begin drafting the opinion. It is important to remember that
the purpose and style of a judicial opinion is different from that of a
memorandum, brief, law review article, or seminar paper for law
school. 40 An opinion is not an essay that covers the subject in minute
detail or that discusses the entire breadth of the legal issues
37. FED. JUDICIAL CTR., CHAMBERS HANDBOOK FOR JUDGES' LAW CLERKS AND
SECRETARJES § 7-2(F)(7), at !59 (4th prtg. 1994) [hereinafter CHAMBERS HANDBOOK].
38. /d. § 7-2(A), at 143.
39. See id.
40. Richard B. Klein, Opinion Writing Assistance Involving Law Clerks: What I Tell
Them, JUDGES' J., Summer 1995, at 33.
involved. 41 An opinion is merely intended to inform the litigants and

general public why the court acted in the manner that it did. 42
Before actually putting pen to paper (or fingers to keys), you
should ask the judge or a co-clerk for a sample opinion written by the
judge. A sample opinion will provide you with a template that the
judge previously found acceptable. If the judge is unable to produce
a sample opinion, do not panic. While the format of an opinion may
vary depending on the court or the case itself, generally an opinion
includes a caption, an introduction to the case, a statement of the
facts, a statement of the issues in contention, a discussion and
analysis of the governing law, and a conclusion. 43 Each of these
sections is described in detail below.
a. Caption of the case
Begin the opinion with the full caption of the case. The caption of
the case identifies the case before the court, including the name of the
court, the docket number, the names of the parties, the name of the
judge assigned to the case, and the title of the document ("Opinion").
An example of the caption of the case is below:
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
MAJOR LEAGUE BASEBALL, INC., Case No. 07-1235

Appellant,
V.
KATIE PRESTON,
Appellee.
OPINION
b. Introduction
The introduction follows the caption of the case. The purpose of
the introduction is to provide a context for the reader by identifying
the "who" and the "what" of the case. 44 It should identify the parties,
41. OPINION WRITING, supra note 14, at 22.

42. /d. at 22-23.
43. Smith, Opinion Writing/or New Judges, supra note 35, at 204.
44. Wanderer, supra note 20, at 56.
the claims filed by the parties, and why the case is presently before
the court (on a specific motion or on appeal). The introduction to the
case generally is not more than one or two paragraphs. 45 Despite its
brief length, the introduction must provide the reader with enough
information to understand the opinion as he or she reads through it. 46
The opening paragraph should begin by identifying the parties to
the lawsuit by name and identifying who each party is in terms of the
litigation (e.g., plaintiff or defendant, appellant or appellee). The
introduction should also establish how the court will refer to the
parties. 47 Rather than using generic identifiers for the parties like
plaintiff and defendant or appellant and appellee, 48 you should use
the names of the parties or functional designations like "Landlord." 49
Identifying the parties by their names or functional designations
lessens the burden on the reader to remember which party is which.
Furthermore, use of the less specific means of identification can be
confusing when there are many parties, including plaintiffs,
defendants, cross-claimants, counter-claimants, etc. 50
After identifying the parties, you should summarize the facts of the
case in a sentence or two. 51 The introduction should then set forth the
procedural history of the case, explaining the nature of the action and
how it came to be before the court and identifying the issue or issues
that the court must decide. 52 In an appellate opinion, the introduction
should also identify what agency or court decisions are under
review. 53 Finally, the introduction should conclude with the holding
(e.g., "AFFIRMED" or "the court finds for the defendant") and state,
if possible, the rule of law that the case reaffirms or establishes. 54 By
setting forth this information, the introduction provides the reader
with context for the information that follows and allows the reader to
better understand the opinion. 55
An example of an introduction is below:
45. Erik Paul Belt, Concerned Readers v. Judicial Opinion Writers, 23 U. MICH. J.L.
REFORM 463, 466 (1990).
46. Smith, Opinion Writing for New Judges, supra note 35, at 205.
48. Klein, supra note 40, at 33.
49. /d.
50. /d.
51. Belt, supra note 45, at 466.
52. Wanderer, supra note 20, at 56; Belt, supra note 45, at 466.
53. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(7), at 159.
55. Smith, Opinion Writing/or New Judges, supra note 35, at 205.
Edward Richter, Circuit Judge

Major League Baseball, Inc. ("MLB"), the appellant,
owns the copyright of the image known as "Chief Wahoo"
(R. at 26), the mascot of the Cleveland Indians baseball
team (R. at 27). MLB filed a copyright infringement claim
against Katie Preston, a cartoonist, for her use of the Chief
Wahoo image in her alternative comic book The
Unauthorized Biography of Wilbur Wahoo. (R. at 2.)
Preston moved for summary judgment on the ground that
her use of the Chief Wahoo image was a fair use under 17
U.S.C. § 107. (R. at 7.) The U.S. District Court for the
Northern District of Ohio held in favor of Preston, reasoning
that she did not infringe MLB 's copyright interest because
her use of the copyrighted Chief Wahoo image was a fair
use. (R. at 10.) MLB appeals that decision, claiming that
the district court erred when it held that Preston's use of the
copyrighted image was fair.
This Court concludes that Preston's use of MLB 's
copyrighted image of Chief Wahoo constitutes fair use and
affirms the district court's grant of summary judgment.
c. Statement of the facts

The statement of the facts follows the introduction. The statement
of the facts is the story of the parties; therefore, it should be told in
narrative form. 56 This section should not include all the facts, but
only those that are legally significant or necessary to establish the
context of the events that occurred. 57 Legally significant facts are
those that are relevant to the issue before the court and will be relied
on by the judge when deciding that issue. Thus, legally significant
facts are determinative ofthe outcome of the case. For example, in a
negligence action, any facts that the court would rely on to determine
whether the defendant owed a duty to the plaintiff, whether the
defendant breached that duty, whether the plaintiff suffered injury,
and whether the defendant's breach of duty was the legal cause of
that harm are legally significant facts that must be mentioned in the
statement of the facts in an opinion.
To ensure accuracy, you should always procure the facts directly
from the record, not from the briefs of the parties. 58 However, while

57. !d.
you should obtain the facts from the record, this does not mean that
the statement of the facts should simply reproduce the record or
include verbatim quotations from depositions, trial transcripts, the
text of pleadings, or motions. 59 Rather, the statement of the facts
should be a brief summary of the facts, just a couple paragraphs. 60
While most cases will require only a couple paragraphs, in a
complicated case, the statement of the facts may need to be longer for
the reader to understand what happened in the case.
Regardless, the facts should be limited to those facts necessary to
understand the court's decision regarding the legal issue. 61
Importantly, the statement of the facts should include facts, not legal
conclusions. 62 A legal conclusion is just what it sounds like-a
conclusion of law. When you include a legal conclusion, you have
examined what actually occurred (e.g., running a red light) and
applied the law to that fact to reach a conclusion (e.g., that the
defendant was negligent). Stating that the defendant was negligent is
a legal conclusion because negligence is a concept defined by law,
and you can only determine that a defendant was negligent by
consulting one or more laws. 63 Because the statement of facts in a
judicial opinion presents the facts of the case in a neutral, objective
manner, you should avoid legal conclusions.
While legal conclusions are not properly included in a statement of
facts, you may include logical conclusions of fact or inferences. 64
Logical conclusions of fact are not facts, but are conclusions that are
reasonably inferred from the evidence presented by the litigants. 65
An example of an inference or conclusion of fact is below:
Although the Hearing Officer did not make an explicit
finding of unavailability, that finding must be inferred from
the Hearing Officer's determination that Adams was entitled
to benefits pursuant to subsection 55-B for 100% partial
incapacity. 66

62. Id. at 57.
63. Cf RICHARD K. NEUMANN, JR., LEGAL REASONING AND LEGAL WRITING: STRUCTURE,
STRATEGY AND STYLE § 14.1, at 183 (4th ed. 2001) (explaining that battery is a
conclusion of law because it "is a concept defined by the law").
65. Id.; NEUMANN, supra note 63, § 14.1, at 184.
66. Wanderer, supra note 20, at 57 (quoting Adams v. Mt. Blue Health Ctr., 735 A.2d
478,484 n.5 (Me. 1999)).
Subsection 55-B requires a finding of unavailability in order to

award benefits to a claimant. The fact that the Hearing Officer
awarded benefits to Adams leads to the logical conclusion that the
officer must have made a finding of unavailability. When including
conclusions of fact in your statement of facts, be careful not to make
inferences based on the law. Only include inferences that you have
drawn from the facts themselves.
Furthermore, "[t]he nonexistence of a fact can itself be a fact" 67
worth noting. Pointing out the absence of specific evidence or the
absence of an allegation may be important depending on the matter
before the court and the governing law. 68
You should generally present the facts in chronological order and
in the past tense. 69 Chronological order is ideal because it gives the
statement of the facts a narrative flow by setting forth the chain of
events that occurred. However, in rare instances, relating the facts in
chronological order will be confusing to the reader. Confusion
occurs when there are many different claims and many facts that
relate only to specific claims. When relating the facts in
chronological order is confusing, use a topical organization. For
example, in a case where a plaintiff claimed that his employer had
discriminated against him in violation of the Americans with
Disabilities Act and claimed multiple disabilities, such as morbid
obesity, diabetes, hypertension, and sleep apnea, it might be easier to
group together the facts relating to individual disabilities rather than
relating all the facts as they occurred in time. Thus, all the facts
relating to the plaintiffs claim of discrimination based on his morbid
obesity would be discussed; next, the facts relating to his claim of
discrimination based on his diabetes would be discussed, and so on.
You may present the facts differently depending on the motion that
is being or has been decided. When dealing with a motion to dismiss,
the court must assume that the plaintiffs factual assertions are true. 70
Additionally, when resolving a motion for summary judgment, the
court does not serve as a fact finder. 71 Because summary judgment is
not warranted if a material fact is in controversy, evidence that both
supports and contests the motion must be set forth in the statement of
the facts. 72
67. NEUMANN, supra note 63, § 14.1, at 185.

68. See id. § 14.1, at 185-86.
70. !d. at 57.
71. !d. at 58.
72. !d.
Finally, when the opinion is complete, be sure to review the

statement of the facts. Make certain that it includes all the facts
relied on by the judge. 73 Additionally, you must provide a citation to
the record for each fact mentioned in the statement of the facts. An
example of a statement of the facts is below:
Facts
Chief Wahoo is the mascot for the Cleveland Indians
baseball team. (R. at 27.) The copyrighted image is a three-
quarter view of a red cartoon face with a broad wide-toothed
grin, a prominent nose, triangular shaped eyes, pointed
eyebrows, black hair parted in the center, and a red feather
over the right ear. (R. at 27.) Chief Wahoo's image appears
on team uniforms, souvenirs, programs, and many products
licensed by the copyright holder. (R. at 28.)
Preston created her comic book, The Unauthorized
Biography of Wilbur Wahoo, to criticize the use of racial
stereotypes by corporate America. (R. at 4 7.) Preston used
the Chief Wahoo image in developing Wilbur Wahoo, the
protagonist in her comic book. (R. at 40.) Although MLB
did not give Preston permission to use the Chief Wahoo
image in her comic book (R. at 30), Wilbur Wahoo shares
the same red face, triangular eyes, prominent nose, pointed
eyebrows, black center-parted hair, broad grin, and red
feather as the copyrighted image (R. at 31). While Preston's
protagonist shares the same features as Chief Wahoo,
Preston added limbs and a body to Wilbur Wahoo and gave
him multiple facial expressions. (R. at 42.) Furthermore,
Preston depicted Wilbur Wahoo from different angles
throughout the comic book. (R. at 42.)
In addition to altering the appearance of Chief Wahoo,
Preston's comic book relates the life story of Wilbur
Wahoo. On the cover of the comic book, Preston has
depicted Wilbur Wahoo wearing a T-shirt with the slogan
"Freedom Now" printed on the front and raising a fist in a
salute. (R. at 43.) Jacobs Field baseball stadium, the home
of the Cleveland Indians, is prominently featured in the
background and a caption appears on the cover stating that
Wilbur Wahoo "flees his corporate captors to find his own
way in the world." (R. at 43.) Preston's comic book goes
73. JUDICIAL ADMIN. DIV., ABA, JUDICIAL OPINION WRITING MANUAL 33 (1991)
[hereinafter JUDICIAL OPINION WRITING MANUAL].
on to detail the adventures of Wilbur Wahoo after his escape

from his "corporate captors." (R. at 43.) He crosses paths
with and frees other racial stereotypes used by corporate
America, such as Aunt Jemima and Uncle Ben. (R. at 44.)
Preston sold the comic book in various comic book stores
in the Cleveland area and on Web sites specializing in
alternative comics. (R. at 46.) She also sold the comic book
from a stand outside Jacobs Field before home games for the
Cleveland Indians. (R. at 46.) She has earned
approximately five hundred dollars from sales of the comic
book. (R. at 46.)
d. Issues in contention
After the statement of facts, the opinion must clearly articulate the
specific legal issues to be decided by the court. 74 Although you may
have briefly identified the issues in the introduction, it is important
that you set forth the legal issues in more detail just before
articulating the determination of those issues. 75 Consolidating the
issues in one paragraph, rather than scattering them throughout the
opinion, is the better organizational strategy. 76 The reader will be
able to easily find the issues in contention and will not have to scour
the entire opinion searching for them. 77 When there is only one legal
issue, the issue in contention may be situated at the start of the
discussion of the issue.
In law school, you may have learned to articulate the issues using a
"whether-when" or "under-does-when" formula. While such a
formula may have been helpful when writing an office memorandum
or brief, judges tend to draft issues in a more sophisticated, less rote
manner. When drafting the issues in contention, begin with language
similar to the following: "The issue in this case is .... " Be sure to
identify the legal question and briefly include the legally significant
facts. An issue has little meaning without the relevant facts. An
example of this section is below:
This Court addresses the question whether the district court

erred in granting Preston's motion for summary judgment

75. !d.
76. !d.
77. See id.
86 Baltimore Law Review (Vol. 38
on the ground that she had a fair use defense to MLB 's
claim of copyright infringement.
e. Discussion of the issues

The next section of the opinion sets forth the court's determination
of the issues and is the "heart of the opinion. " 78 This section provides
not only the court's resolution of the issues, but also the reasoning
supporting its decision. 79 This section sets forth the applicable legal
principles, including the applicable standard of review, and applies
them to the matter currently before the court. 80 However, it is
important to remember that "[a] judicial opinion should resolve only
the pertinent controversy" before the court "and not discuss
superfluous matters." 81
1. Standards of review
In a judicial opinion, the standard of review follows the heading for
the determination of the issues section and precedes the analysis of
the substantive issues. 82 The standard of review precedes the analysis
of the substantive issues because it significantly affects the analysis
of the issues and the outcome of the case. The standard of review
creates the framework for how the court views the facts and discusses
the analysis. Different standards can lead to vastly different results.
For example, an "error that may be a grounds for reversal under one
standard of review may be insignificant under another." 83 Thus,
because the standard of review affects the outcome, it is essential that
you have a basic understanding of the various standards and how they
operate.
The term "standard of review" means something slightly different
at the trial level than it does at the appellate level. 84 At the trial level,
78. /d.
79. See id.
80. /d. at 59.
81. Ethical Judicial Opinion Writing, supra note 16, at 20 (citing JOYCE J. GEORGE,
JUDICIAL OPINION WRITING HANDBOOK 242 (4th ed. 2000)).
82. NEUMANN, supra note 63, § 29.3, at 392-93. When there is more than one issue, each
with a different standard of review, the standard should be discussed prior to the
analysis of the substantive issue. See JOSEPH L. LEMON, JR., FEDERAL APPELLATE
COURT LAW CLERK HANDBOOK 28 (2007).
83. RUGGERO J. ALDISERT, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT§
5.2, at 57 (rev. 1st ed. 1996) (hereinafter WINNING ON APPEAL].
84. See MARY BETH BEAZLEY, A PRACTICAL GUIDE TO APPELLATE ADVOCACY 12 (2d ed.
2006).
think of the standard of review as the standard, or test, that the court
uses to decide a motion. For example, Rule 56(c) of the Federal
Rules of Civil Procedure allows a trial court to grant a motion for
summary judgment only when the evidence shows that there is no
genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law. 85
On the other hand, at the appellate level, the standard of review
refers to the level of deference the appellate court gives to the trial
court's findings. 86 The standard of review governs how closely the
appellate court will scrutinize the ruling of the trial court, and the
extent to which its own independent judgment should control the
outcome. Thus, the standard of review serves as the appellate court's
"measuring stick" 87 for determining "how 'wrong' the lower court
has to be before it will be reversed." 88 The standard of review is a
hurdle that the appellant must overcome to win the appeal; the more
deference, the higher the hurdle.
The standard of review is different with regard to appeals of
questions of law, 89 questions of fact, 90 and discretionary matters. 91
Appellate courts give little deference to the trial court with regard to
questions of law because appellate courts are as well suited, if not
better suited, to determine these issues. In contrast, appellate courts
extend great deference to trial court decisions regarding questions of
fact because the trial judge was in a position to see the witnesses and
evidence firsthand. 92 Appellate courts also defer to the trial court's
decision on discretionary matters because the trial judge is presumed
to be an expert on equitable and procedural issues. 93 Thus, with the
85. FED. R. Clv. P. 56(c).

86. BEAZLEY, supra note 84, at 12.
87. TERESA J. REID RAMBO & LEANNE J. PFLAUM, LEGAL WRITING BY DESIGN: A GUIDE
TO GREAT BRIEFS AND MEMOS§ 22.2, at 375 (2001).
89. A question of law is just that-it is a question of what the law is or what it requires.
Examples of questions of law include whether the jurisdiction recognizes a particular
cause of action, how long the statute of limitations is for a particular claim, or whether
a will must be signed in order to be valid. These questions can be answered without
reference to the facts of the case. NEUMANN, supra note 63, § 29.3, at 391. Indeed,
the facts are irrelevant to the resolution of the issue.
90. Unlike questions of law, questions of fact are decided on the evidence without
reference to the law. With regard to such questions, what the law is or is not and how
it applies are irrelevant.
91. Discretionary matters include equitable and procedural matters. NEUMANN, supra
note 63, § 29.3, at 391.
93. See id. at 15; see also NEUMANN, supra note 63, § 29.3, at 391.
exception of an appeal of a question of law, It Is difficult for an

appellant to overcome the hurdle presented by the standard of review.
The four most commonly used standards of review are discussed
briefly below:
First, the de novo standard of review applies to questions of law,
including many constitutional issues. 94 Under the de novo standard,
the appellate court gives no deference to the trial court's or jury's
decisions, but independently reviews the matter and substitutes its
judgment for that of the trial court. 95 When drafting an opinion
where the de novo standard applies, the standard will have almost no
impact on the analysis of the matter. 96 You should draft the opinion
as if the matter is being heard for the first time. 97 Reference need
only be made to the trial court's decision when discussing the
procedural history of the case on appeal and at the end of document,
where the appellate court either affirms or reverses the decision
below.
The de novo standard is also used with regard to some mixed
questions of law and fact, 98 which concern the application of a given
law to a given set of facts. 99 While some mixed questions of law and
fact warrant de novo review, other mixed questions warrant review
under the clearly erroneous standard. Ioo The appropriate standard
depends on whether facts or law predominate; Ioi however, in most
cases involving mixed questions of law and fact, appellate courts
apply the de novo standard. Ioz
Second, the substantial evidence standard of review is used with
regard to questions regarding findings of fact made by both juries and
administrative agencies. While "substantial evidence" means
something "more than a mere scintilla" of evidence, IoJ it "does not
mean a large or considerable amount of evidence, but rather 'such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."'I 04 Thus, appellate courts are extremely

95. !d.
96. See id.
97. Seeid.
98. /d.
99. /d.
100. LINDA H. EDWARDS, LEGAL WRITING: PROCESS, ANALYSIS, AND ORGANIZATION 282
(4th ed. 2006); see also infra text accompanying notes I 05-110.
101. !d.
102. /d.
103. Consol. Edison Co. v. Nat'! Labor Relations Bd., 305 U.S. 197,229 (1938).
104. Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol. Edison Co., 305
U.S. at 229).
deferential to findings by juries and administrative agencies, and the

court will not substitute its judgment for that of the jury or the
administrative agency.
Third, the clearly erroneous standard of review applies to findings
of fact made by a trial judge. "Clearly erroneous" means "more than
just maybe or probably wrong." 105 An appellate court can reverse a
trial judge's finding of fact only if it has "the definite and firm
conviction that a mistake has been committed." 106 Therefore, the
appellate court gives the trial judge's decisions great deference and
cannot substitute its judgment for that of the trial court. 107
When drafting an opinion in a case where the clearly erroneous
standard is applicable, the standard will have a significant impact on
the analysis of the matter. 108 The standard of review must be
incorporated into the analysis of the issue. For example, if you
conclude that the trial court's finding of fact was clearly erroneous,
you must identify the erroneous finding and show how the evidence
demonstrates that the finding was clearly erroneous. 109 Additionally,
you must demonstrate how the clearly erroneous finding of fact
altered the outcome of the case. 110
Fourth, the abuse of discretion standard of review is used with
regard to equitable and procedural matters. 111 Appellate courts give
great deference to the trial court on such matters. Great deference is
given to trial judges on discretionary matters because they are
presumed to be experts on such matters. 112 An appellate court will
reverse a trial court's exercise of discretion only where the judge's
discretion is exercised in a manner not justified by the evidence, and
the trial court has consequently exceeded its discretion by committing
a clear error in judgment. 113 In drafting an opinion where the abuse
of discretion standard is applicable, if you decide that the trial court
abused its discretion, you must identify the specific decision the
judge made in error, use the appropriate authorities to explain why
that decision was incorrect, and specify why and how that error
altered the outcome of the case.
105. Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988).
106. United States v. U.S. Gypsum Co., 333 U.S. 364,395 (1948).
107. Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).
I 08. See BEAZLEY, supra note 84, at 17.
109. !d.
110. !d.
Ill. NEUMANN, supra note 63, § 29.3, at 391.
112. See BEAZLEY, supra note 84, at 15.
113. RAMBO & PFLAUM, supra note 87, § 22.4, at 379.
Those are the four most commonly used standards of review.

Standards of review may seem deceptively simple. However,
selecting the appropriate standard can be tricky, particularly with
mixed questions of fact and law. When trying to determine the
appropriate standard of review for a given case, you must conduct
research in the governing jurisdiction 114 because motion standards are
specific to particular motions and appellate standards of review vary
from state to state and between the states and the federal
government. 115 Before researching the standard of review, you
should determine whether the judge's chambers has on file
boilerplate language for standards of review. 116 If so, be sure to
update the law to make sure that it has not changed. 117 If the judge
does not have such boilerplate on file, research the relevant rules and
authorities in the governing jurisdiction. 118 You will often be able to
use the court's language to describe the standard of review. Also,
regardless of whether you use boilerplate from the judge's files or
language from a case, you must provide citations to authority.
An example of the standard of review section is below:
Discussion
We review de novo a district court's order granting
summary judgment. DiCarlo v. Potter, 358 F.3d 408, 414
(6th Cir. 2004). We will affirm a grant of summary
judgment 4'if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). In reviewing the district court's decision to grant
summary judgment, we will view all evidence in the light
114. NEUMANN, supra note 63, § 29.3, at 391-92.

115. !d. at 391.
116. See CALVERT G. CHIPCHASE, FEDERAL DISTRICT COURT LAW CLERK HANDBOOK 39
(2007).
117. /d.
118. Generally, with regard to a motion, you should start research for the governing rule in
either the civil or criminal rules of procedure and then research cases in which the
courts have applied the standard. See BEAZLEY, supra note 84, at 23. The courts in
those cases may have opined on the meaning of the standard, and those elaborations
on the standard's meaning may become part of the standard of review. See RAMBO &
PFLAUM, supra note 87, § 22.2, at 374 n.2. With regard to appellate standards of
review, the best place to start researching is the law regarding the substantive issues in
the case. See id. Often, case law regarding the substantive issues identifies the
applicable standard and explains what the standard means and how it operates. See
NEUMANN, supra note 63, § 29.3, at 392.
most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Where material facts are not in dispute, fair use is
appropriately decided on summary judgment. Hmper &
Row, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
n. Analysis of the issues

After identifying the relevant standard of review, the opinion must
then resolve the issues on appeal. The opinion should clearly explain
the law governing the substantive areas in question and its application
to the facts of the case in order to avoid any ambiguity. 119 Ambiguity
in an opinion, particularly an appellate decision, will likely lead to
further litigation in an attempt by lawyers and litigants to determine
the precise meaning of the opinion. 120 In the opinion, to avoid
ambiguity, you must be sure to set forth the facts that drive the
outcome and to articulate why those facts, when considered in regard
to the governing rule of law, lead to the result articulated by the
judge. Additionally, clarifying the court's factual basis for the
decision will provide future litigants and future courts with the
information necessary to resolve future disputes. 121
Headings and an outline format, while not necessary if the opinion
is short, help guide the reader through the opinion. 122 If the opinion
is long or involves several distinct issues, discuss each individual
unrelated issue before the court separately and provide section
headings that correspond to each issue. 123 The section headings for
these individual unrelated issues should be labeled with roman
numerals (I, II, etc.). Then, when analyzing an issue, provide sub-
headings for any smaller categories within that subject that must be
analyzed. The elements or factors that are examined with regard to
the prima facie case are often good candidates for subsections. The
subheadings for these sections are labeled with a capital letter (A, B,
etc.). Smaller categories within these subheadings are labeled with
numerals (1, 2, etc.) and lower case letters (a, b, etc.) as appropriate.
For example, let's assume that the case for which you are drafting
an opinion on a motion for summary judgment involves a question of
whether the defendant infringed upon the plaintiff's copyright or
119. See Wanderer, supra note 20, at 59.

120. /d.
121. See id.
whether the defendant's use of the copyrighted image was a fair use.
The factors to be analyzed when determining whether an author or
artist is entitled to the fair use of the copyrighted work include the
following:
(1) the purpose and character of the use ... ; (2) the nature
of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential
market for or value of the copyrighted work. 124
The headings for such an opinion may look something like the
following:
I. Copyright Infringement
A. Violation of the Owner's Copyright
B. Fair Use Defense
1. Purpose and Character of the Use
2. Nature ofthe Copyrighted Work
3. Amount and Substantiality of the Portion Used
4. Effect on the Market or Value of the Copyrighted
Work
The section headings will serve as landmarks so that the reader

does not get lost in the opinion. Additionally, by breaking the
opinion into shorter, more manageable chunks of information, the
opinion will be less likely to overwhelm the reader and the section
headings will aid the reader's understanding of the opinion. 125
When more than one issue is to be decided, you must decide the
order in which to discuss the issues. 126 The order in which you
discuss the issues need not necessarily correspond with the order
followed by counsel for the litigants in their briefs. 127 Generally, you
must discuss the most important issue first. 128 However, if there is a
preliminary procedural question that may affect the outcome of the
case, you should dispose of that issue first before discussing the
substantive matters. 129 Additionally, if there is a nonprocedural
124. 17U.S.C.§107(2000).
125. See Belt, supra note 45, at 469.
126. Smith, Opinion Writing for New Judges, supra note 35, at 206; Smith, Opinion
Writing for Law Clerks, supra note 13, at 1206.
127. Smith, Opinion Writingfor Law Clerks, supra note 13, at 1206.
128. !d.; see also Smith, Opinion Writing for New Judges, supra note 35, at 206.
129. Smith, Opinion Writing for New Judges, supra note 35, at 206; Smith, Opinion
Writing for Law Clerks, supra note 13, at 1206.
threshold issue, such as a statute of limitations question, you should

resolve that issue before discussing the other substantive issues. 130
Following resolution of threshold issues, you should address major
claims or issues before deciding less significant issues. 131 However,
if no one claim is more significant than any other claim, you should
first resolve the claim that will have the greatest effect on the
litigation. 132 For instance, if a defendant in a criminal appeal requests
either a new trial or, alternatively, a reduced jail sentence, the first
issue you should address is whether to grant a new trial. If the court
grants a new trial, there is no need to consider the defendant's request
for a reduced sentence. 133 However, all else being equal, resolve the
issues based on the hierarchy of authority: resolve constitutional
questions first, statutory questions second, common law questions
third, 134 and state law claims fourth. Regardless of the order in which
the issues are discussed, the opinion should flow smoothly "from one
point to the next, without repetition of facts already stated." 135
Counsel for the litigants will likely present a plethora of issues in
their briefs. The amount of discussion you should devote to a
particular issue depends on the issue itself. When dealing with a
point of law that is well settled, you can adequately resolve the issue
with little discussion. 136 Often, reference to one or two citations is
sufficient. 137 However, if the issue involves a novel question of law,
or an area of law where the court's opinions seem to contradict each
other, a longer, more detailed discussion will be required. 138 Finally,
issues with little merit require little discussion. 139 While these issues
do not merit detailed discussion, the opinion should not completely
ignore such issues. In order to reassure counsel that the court took
notice of the alleged errors, the opinion should mention these issues
and note that they are without merit. 140 The discussion of these
meritless issues can be grouped together, rather than scattered
130. See Ethical Judicial Opinion Writing, supra note 16, at 56.
131. !d.
132. !d.
133. !d.
134. !d. at 57.
137. !d.
138. !d. (citing Smith, Opinion Writing for Law Clerks, supra note 13, at 1206).
139. !d. at 60; see also CHAMBERS HANDBOOK, supra note 37, § 7 -2(F)(7), at 159-60.
140. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(7), at 159-60.
throughout the opinion, and dispatched in a sentence or two at the

end of the opinion. 141 No additional discussion is necessary.
When discussing each individual issue, use the following
organization:
[F]irst, identify the discrete issue, perhaps by a section
heading; then present the statutory or common law rule that
applies and show how that rule has been applied in other
analogous cases; finally, apply that rule to the facts in the
case at hand by presenting both parties' arguments and
reach a conclusion indicating which argument is more
persuasive. The final disposition of the case should reflect
the sum of the individual conclusions of the separate issues
on appeal. If one of the individual conclusions is
inconsistent with the final disposition, either that individual
conclusion should be changed or the final disposition must
be modified. The final disposition must be consistent with
all ofthe individual conclusions. 142
Remember that, at the trial level, the court's reasoning is simply to
justify its decision. 143 It does not have an "error-correcting"
function. 144 At the appellate level, on the other hand, the purpose of
the opinion is to determine whether the trial court erred, and if errors
were made, whether they were prejudicial. 145 However, before
determining whether errors were made, the appellate court must
determine whether a final appealable order exists and, thus, whether
the court has appellate jurisdiction over the matter. 146 After
determining that the court has jurisdiction over the appeal, the court
must then note which issues on appeal were preserved at the trial
level. 147 Once the court has established jurisdiction and which issues
were preserved for appeal, the court must then determine the
appropriate standard of review. 148 Often, the standard of review "is
established either by statute or by case law. It serves as a guide to
measure the weight of the error. It determines whether the error is
prejudicial." 149

142. !d. (footnotes omitted).
143. !d. at 58.
144. !d. at 58-59.
145. !d. at 59.
146. !d. (citing GEORGE, supra note 81, at 194).
147. /d.
148. !d.
149. !d. (alteration in original) (quoting GEORGE, supra note 81, at 194).
An example of the discussion of the issues section is found below.

Please remember that this section may be organized differently
depending on the number of issues before the court.
B. The Fair Use Defense to Claims of Copyright

Infringement
Generally, under the Copyright Act of 1976, a copyright
holder has the exclusive right to reproduce or distribute the
copyrighted work and to authorize derivative works. 17
U.S.C. § 106 (2000); Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 576 (1994) (quoting § 106). Any use of a
copyrighted work without the permission of the copyright
holder is considered an infringement of these exclusive
rights. Campbell, 510 U.S. at 576 (quoting § 106). MLB
owns the copyright to the Chief Wahoo image. (R. at 26.)
Because Preston copied the Chief Wahoo image in her
comic book and reproduced the comic book, MLB has
established a prima facie case of copyright infringement.
However, the fair use of copyrighted material is not
considered an infringement, particularly when done to
comment on or criticize the original copyrighted work. 17
U.S.C. § 107 (2000). The purpose of copyright protection is
to be the "engine of free expression," encouraging the
progression of science and useful arts for the benefit of
society. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d
1257, 1261 (11th Cir. 2001) (quoting Harper & Row,
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558
(1985)). The availability of a fair use defense is consistent
with the policies underlying the Copyright Act because,
"[ e]very book in literature, science and art borrows, and
must necessarily borrow, and use much which was well
known and used before." Campbell, 510 U.S. at 575
(quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D.
Mass. 1845)). The opportunity to use elements of an
existing work to make a new work, particularly for artistic
or critical purposes, has always been considered vital to
achieving the underlying purpose of the Copyright Act: the
creation and progression of new ideas. !d. at 578 (quoting
Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L.
Rev. 1105, 1134 (1990)).
Fair use is an affirmative defense which requires the party
claiming the defense to carry the burden of its proof. Id. at
590 (citing Harper, 471 U.S. at 561); see also H.R. Rep.
No. 102-836, at 3 (1992), reprinted in 1992 U.S.C.C.A.N.
2553, 2554. To determine whether a use is fair, the Court
considers the following factors:
( 1) the purpose and character of the use, including

whether such use is of a commercial nature or is for
nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work
as a whole; and (4) the effect of the use upon the
potential market for, or value of the copyrighted
work
17 U.S.C. § 107. The presence or absence of any single

factor is not dispositive of fair use; rather, all factors are
weighed together on a case-by-case basis. Campbell, 510
U.S. at 577 (citing Harper, 471 U.S. at 560).
The district court concluded that Preston's use of MLB's
copyrighted Chief Wahoo image was fair use. (R. at 10.)
The district court reasoned that a trier of fact could only
conclude that Preston's work was fair use because: (1) her
use was parody meant to criticize MLB's use of racial
stereotypes for corporate gain; (2) she only copied what was
necessary for her purpose; and (3) her comic book would
not affect the market demand for MLB 's products or those
of its licensees. (R. at 10.)
Because we agree with the district court that no triable
issues of fact exist on whether Preston's use of MLB 's
Chief Wahoo image constitutes fair use, we weigh the four
§ 107 fair use factors on appeal. This Court concludes that
Preston's use of MLB's copyrighted Chief Wahoo image
constitutes fair use and affirms the district court's grant of
summary judgment.
1. The Purpose and Character of the Use
The first factor to consider when determining whether a
work is entitled to fair use protection is the purpose and
character of the use. 17 U.S.C. § 107(1 ). In determining
whether this factor favors fair use, the Court must weigh the
following considerations: (1) whether the work is a use that
is considered fair, such as criticism or commentary; (2)
whether the use is sufficiently transformative that it does not
merely supplant the original work; and (3) whether the use
is commercial or nonprofit in nature. Campbell, 510 U.S. at
578-79 (quoting 17 U.S.C. § 107). No single consideration
is dispositive of whether the purpose and character factor
favors fair use, but each consideration should be weighed
collectively. !d. at 577 (citing Harper, 471 U.S. at 560).
Works that criticize or comment on the copyrighted work
are often considered a fair use of the original work under 17
U.S.C. § 107. While § 107 does not expressly identify
parody as a fair use, it is a form of criticism that is entitled
to fair use protection as it furthers the goals of the Copyright
Act by taking a known idea and expanding it through
analytic commentary. Campbell, 510 U.S. at 580. Parody
is a literary or social form of commentary or criticism that
imitates the characteristic style of a work for comic effect or
ridicule, not just to draw attention or avoid the creative
process. !d.; Dr. Seuss Enters., L.P. v. Penguin Books USA,
Inc., 109 F.3d 1394, 1400 (9th Cir. 1997). A parodist's
claim to fair use is based on the fact that the parodist must
use some elements of a prior work to create a new one that
comments on the original work. Campbell, 510 U.S. at 580.
For example, in Suntrust Bank v. Houghton Mifflin Co., 268
F.3d 1257 (11th Cir. 2001), the court found that a spoof of
the novel Gone with the Wind was a parody because it
criticized slavery and commented on the depictions of
blacks and whites in the original novel through parodies of
the original characters. ld. at 1269. The author wrote a
novel that copied the core characters, plot, famous scenes,
and relationships of the copyrighted novel. !d. at 1259.
Moreover, the title of the secondary novel, The Wind Done
Gone, was similar to the copyrighted work, Gone with the
Wind. ld. The court reasoned that The Wind Done Gone
was a parody of the copyrighted novel that deserved fair use
protection because the author used her novel to criticize the
copyrighted work's depiction of slavery and the
romanticism of the Old South. Id.
In determining whether a use was fair, the court does not
consider whether the parody was successful, only whether
the work could reasonably be interpreted as commenting on
the original work. Campbell, 510 U.S. at 582. However,
the use of a copyrighted work for parody is not dispositive
of fair use, and must be weighed with the other factors
provided by 17 U.S.C. § 107. Jd. at 581.
Preston's comic book is a parody of the Chief Wahoo

image, which favors the fair use defense. Preston's comic
book is a parody because she uses the copyrighted image to
criticize MLB's use of the Chief Wahoo image and to
comment on corporate exploitation of racial stereotypes.
(R. at 47.) On the cover, Chief Wahoo is portrayed wearing
a "Freedom Now" T-shirt with his fist raised in salute and
Jacobs Field stadium prominently depicted in the
background. (R. at 43.) This image coupled with the
caption on the cover stating that Wilbur Wahoo "flees his
corporate captors to fmd his own way in the world" (R. at
43), indicates that Chief Wahoo is a prisoner of the
Cleveland Indians and ofMLB. That he runs away from his
corporate captors and frees Uncle Ben and Aunt Jemima (R.
at 44), other racial stereotypes being used for corporate
advertising, reveals Preston's message-she is using the
copyrighted image of Chief Wahoo to criticize MLB's
exploitation of racial stereotypes for monetary gain (R. at
47). Thus, her use of the Chief Wahoo image was necessary
to alert Preston's audience to the target of her criticism.
In order for her comic book to have an impact, Preston
must rely on the public's recognition of the Chief Wahoo
image. Just as in Suntrust Bank, where the court found that
the author's novel was a parody when it copied the
characters in Gone with the Wind to criticize the
copyrighted work's depiction of slavery and romanticism of
the Old South, 268 F.3d at 1269, in this case, Preston's
comic book was a parody because she copied the Chief
Wahoo image specifically to criticize MLB' s use of racial
stereotypes for corporate gain (R. at 47). Thus, given that
the critical nature of her work is reasonably perceivable,
Preston's comic book is a parody, which favors fair use.
When evaluating the purpose and character of a parodic
use, the court must also determine whether the new work is
transformative. Campbell, 510 U.S. at 579. A new work is
transformative if it does more than merely copy the original,
but adds to the original in such a way that it creates a
different character and purpose. !d. (citing Leval, Fair Use,
supra, at 1111). Generally, a use that alters the expression
or meaning of the copyrighted work will be considered
transformative, and a use that merely exploits the creative
quality of the original will not. Blanch v. Koons, 467 F.3d
244, 252 (2d Cir. 2006). The level to which the new work is
transformative of the original indicates the novelty

associated with the new work, and it is this notion of
novelty that is the basis of the fair use defense and the
principles of copyright. Campbell, 510 U.S. at 580.
Finding that the new work is transformative is not
absolutely necessary for the fair use defense; however, the
more transformative the new work, the less significant the
other factors will be in the fair use determination. !d. at
579.
Parodies, by their nature, are inherently transformative.
Id. The essence of a parody is to remind the reader of the
original, but also to create a new meaning that comments on
the original. !d. at 580. For example, in Mattei Inc. v.
Walking Mountain Productions, 353 F.3d 792 (9th Cir.
2003), Mattei sued a photographer for using Barbie dolls in
photographs where he put the dolls in sexual and violent
positions to parody the typical perception of the toy as a
symbol of femininity and grace. !d. at 796. The court
found the photographer's use of the photographs to be fair,
reasoning that, although he used Mattei's copyrighted
works, the photographer sufficiently transformed the image
of the doll. !d. at 802. He did not copy Barbie verbatim.
Rather, he added new elements to her environment, such as
depicting her being attacked by kitchenware, to juxtapose
these images with the usual perception of Barbie as a
wholesome American girl. !d. The court found this use of
Barbie to be transformative, noting that the use of "lighting,
background, props, and camera angles all serve to create a
context for Mattei's copyrighted work that transform
Barbie's meaning." !d. Thus, the artist created a
sufficiently transformative work that expressed a new idea
of the kind promoted by copyright law and the fair use
defense.
Preston's use of the copyrighted image is highly
transformative because her use alters both the image itself
and the meaning attached to it. Preston used Chief Wahoo's
red skin, broad grin, prominent nose, triangular eyes,
pointed eyebrows, dark center-parted hair, and red feather.
(R. at 31.) Moreover, Preston named her protagonist Wilbur
Wahoo, which is very similar to Chief Wahoo. (R. at 40.)
However, while Preston used the static image of Chief
Wahoo, the unchanging three-quarter view of his face with a
broad grin and one ear showing (R. at 31 ), she altered the
image in many ways. Preston gave Wilbur Wahoo limbs, a

body, and clothing. (R. at 42, 43.) She depicted him from
many different angles, not just from the three-quarters
angle. (R. at 42.) Preston also portrayed Wilbur Wahoo
with varied facial expressions, not just with the broad grin.
(R. at 42.)
Furthermore, Preston did not merely repackage the image,
but she gave it new meaning. Unlike the copyrighted image
of Chief Wahoo, Preston placed Wilbur Wahoo within the
context of a story with a background, plot, and friends. (R.
at 42-44.) Preston used this context to alter the meaning
attached to the copyrighted image. While MLB's Chief
Wahoo fosters recognition and admiration for the Cleveland
Indians baseball team (R. at 27), Preston's image is a social
commentary on the corporate exploitation of racial
stereotypes. (R. at 47.) Like the photographer in Matte!,
whose photos of Barbie were transformative due to the
artist's use of lighting, camera angles, and background to
change Barbie's meaning, Preston's use of the ChiefWahoo
image was transformative because she changed the meaning
associated with the image by altering Chief Wahoo's
physical appearance and by placing him in a new context.
The differing purpose of Preston's image, as well as the
elements added to the Chief Wahoo image and the narrative
context in which Wilbur Wahoo is situated, are clear
indications of Preston's creativity, and as such, the work is
sufficiently transformative in nature to favor a finding of
fair use.
The final consideration in determining the purpose and
character of a use is whether the use is commercial in nature
or is for nonprofit educational purposes. Campbell, 510
U.S. at 584. The less the use is aimed at commercial gain,
the more likely it is to be considered fair use. /d. at 579.
The commercial character of a parody does not
automatically preclude a finding of fair use; however, the
courts generally recognize that the higher the transformative
and creative value of the parody, the less weight any
commercial element will have in the fair use analysis. /d. at
585. For example, when the commercial character was
secondary to the critical message of the work, the court
affirmed a finding of fair use. Blanch, 467 F.3d at 254.
The commercial character of Preston's comic book
weighs against fair use since she profited from selling the
comic book. Preston sold her comic book in various comic

book stores in the local Cleveland area, outside the baseball
stadium on game days, and on Web sites. (R. at 46.) While
Preston profited from sales of the comic book, she earned a
mere five hundred dollars. (R. at 46.) Thus, the
commercial character of her use was minimal and secondary
to the critical character and purpose of her comic book.
Furthermore, the transformative value of her comic book is
of far greater weight than its commercial value. Therefore,
while the commercial character of the comic book disfavors
a finding of fair use, this consideration is given little weight.
Since Preston's comic book is a parody that criticizes and
comments on the copyrighted image of Chief Wahoo, and
the commercial character of the comic book is outweighed
by its highly transformative character, the purpose and
character of Preston's work favors fair use.
2. The Nature of the Copyrighted Work
The second factor to consider with regard to fair use is the
nature of the copyrighted work. This factor recognizes a
hierarchy of copyrighted works, with creative works
receiving more copyright protection than factual or
informational works. Blanch, 467 F.3d at 254. The more
creative a copyrighted work is, the closer to the core of
copyright protection it is, such that a work with a more
original element, like a book or song, receives greater
protection than factual or informational works, such as a
news report. Id. at 255. Thus, the less creative the original
work, the more firmly a fair use defense can be established.
Campbell, 510 U.S. at 586.
Although the creative nature of a work typically weighs in
favor of the copyright holder, this factor is not helpful in
distinguishing fair use in a parody case since parodies, by
their very nature, use elements of published, creative works
to make their critical point. !d. Thus, even if the original
work is a creative work, this factor does not bear much
weight in a parody case, or where the creative work is used
for a transformative purpose. Id.; Blanch, 467 F.3d at 257.
The Chief Wahoo image is a creative, original expression
meant to be protected by the Copyright Act. (R. at 27-28.)
However, Preston's comic book is a parody that comments
on the use of racial stereotypes for corporate gain by using
the familiar, creative image of Chief Wahoo and

manipulating it to tell a new story. (R. at 47.) Therefore,
although this factor weighs against a finding of fair use
because of the creative nature of the Chief Wahoo image, it
is given little weight in the overall fair use analysis and its
negative effect on the present case is minimal.
3. The Amount and Substantiality of the Portion Used in
Relation to the Copyrighted Work as a Whole
The amount and substantiality factor considers both the
quantity and the quality of the portions of the copyrighted
work that were used. Campbell, 510 U.S. at 587-88. This
factor will weigh against fair use where the amount used is
great or the portion used is so important to the original that
the new work is likely to serve as a substitute for, or cause
harm to the market value of, the original. Id. The "extent of
permissible copying varies with the purpose and character
of the use." Id. at 586-87. For instance, a parody is
allowed to use a greater amount of the copyrighted work
because it must necessarily conjure up the most distinctive
and memorable features of the original so that the audience
will know who or what the commentary is targeting. ld.
Furthermore, a parody is not limited to using only those
elements needed to conjure the original work, but may use
additional elements of the original. Suntrust Bank, 268 F .3d
at 1273. However, once enough has been taken to conjure
up the original in the minds of the readership, any further
taking must specifically serve the new work's parodic aim.
!d. (quoting Campbell, 510 U.S. at 588). Even entire
verbatim reproductions of substantial portions of an original
work are justifiable where the purpose of the new work
differs from the original. Campbell, 510 U.S. at 588.
For example, in Suntrust Bank, the defendant copied the
core characters, character traits, relationships, famous
scenes, prominent plot, and verbatim dialogues and
descriptions from the novel Gone with the Wind. 268 F .3d
at 1259. The material was taken for purposes of creating a
parody, The Wind Done Gone, which criticized the racist
undertone of the plaintiffs copyrighted work. Id. at 1273.
Despite the fact that a substantial portion of the original
copyrighted work was utilized, the court held that The Wind
Done Gone did not use an excessive amount of the original
copyrighted work, but rather the new work's use was
reasonable and fair in relation to its critical purpose. Id.
The court noted that a parodist is not required to "take the

bare minimum amount of copyright material necessary to
conjure up the original work." !d. Rather, since every
element taken from the original work served the author's
parodic purpose, the use was deemed fair. !d. Further,
because the meaning of the new work was very different
from that of the original and the new work did not divert
consumers from products associated with the original to its
own, it was unlikely to serve as a market substitute for the
original. /d. at 1275-76.
Preston used the entire copyrighted image, incorporating
all of Chief Wahoo's distinguishable features, including his
red skin, prominent nose, triangular eyes, broad grin,
pointed eyebrows, dark hair, and red feather. (R. at 31.)
While Preston copied Chief Wahoo's facial features, each
element was used to conjure up the distinctive image of
Chief Wahoo in the reader's mind so that she could parody
that image. (R. at 47.) Furthermore, Preston used each
element to further a distinct parodic purpose. She drew
attention to the fact that corporations perpetuate racial
stereotypes for economic gain when she copied the
exaggerated racial characteristics used in the copyrighted
image, such as Chief Wahoo's red skin and dark hair. (R. at
31, 47.) Since a parodist is not required to take only that
which is minimally necessary to conjure up the original, and
Preston had a parodic purpose for each element copied, as
did the author in Suntrust whose use was considered
reasonable, the amount and substantiality of the portion
used by Preston favors a fair use defense.
4. The Effect of the Use on the Potential Market for, or
Value of, the Copyrighted Work
The fourth factor to be considered with regard to the fair
use defense is "the effect of the use upon the potential
market for or value of the copyrighted work." 17 U.S.C. §
107(4). Under this factor, the Court must consider whether
there would be a substantial negative impact on the potential
market for the original, as well as its derivative works, if use
like that in question was unfettered and pervasive.
Campbell, 510 U.S. at 590 (quoting Harper, 471 U.S. at
568). A use harms the market for the original work if it
serves as a substitute for the original or its derivative works.
Id. at 592-93. If an unauthorized use supplants the market
for the original or potentially licensed derivatives, it is not a

fair use of the original work. !d. For this factor to favor fair
use, the new work may harm the market for the original or
any derivative works by suppressing the demand for the
original so long as it does not actually usurp demand for the
original by acting as a market substitute. /d. at 592 (quoting
Fisher v. Dees, 794 F.2d 432, 438 (9th Cir. 1986)).
Generally, the more transformative the new work is, the
less likely it is that it will actually be able to serve as a
market replacement for the original. Id. at 591. For
example, parodies are not likely to substitute for the original
work because parodies serve a different function than the
original. Id. A parody that successfully criticizes the
original work may suppress the demand for the original
work, but it cannot usurp the demand. /d. at 592. Incidental
damage to the market for the original or its derivatives will
not defeat fair use so long as the damage is a by-product of
a shift in consumer attitude caused by criticism or
commentary. Matte/, 353 F.3d at 805.
MLB uses the copyrighted image of Chief Wahoo as a
team mascot to commercially promote the Cleveland
Indians baseball team. (R. at 27-28.) Preston, on the other
hand, used the Wilbur Wahoo character in her comic book
to criticize corporate use of racial stereotypes. (R. at 47.)
The two images, Chief Wahoo and Wilbur Wahoo, serve
markedly different functions and appeal to different
audiences. Even though Preston's criticism of MLB's use
of Chief Wahoo may result in harm to the reputation of the
original Chief Wahoo image, it is unlikely that Preston's
work will act as a market substitute for the copyrighted
image. The difference between the purpose of the original
work as a baseball icon and that of Preston's comic book as
a criticism of corporate exploitation of racial stereotypes
suggests that the effect on the potential market for, or value
of, the copyrighted work will be minimal. Thus, this factor
favors fair use.
While the nature of the Chief Wahoo image was creative,
and thus weighs against fair use, the purpose and character
of the comic book favor fair use, as does the fact that
Preston did not use an unreasonable amount of the
copyrighted image and that the comic book will have no
cognizable effect on the market for the Chief Wahoo image
or on the derivatives market. Therefore, Preston's use of the
Chief Wahoo image was fair and MLB' s copyright of the

Chief Wahoo image was not infringed.
f Conclusion
The conclusion, which is the last paragraph of the opmwn,

announces the court's disposition of the case and its mandate. 150 The
disposition and mandate should not only set forth the decision that
has been reached by the court, but also identify the relief to be
granted. 151 At the trial level, the conclusion section must clearly
articulate for whom judgment was rendered. At the appellate level,
the judgment appealed may be affirmed, revised and rendered, or
reversed and remanded. 152 If the case is reversed and remanded, the
opinion must include instructions for the lower court. 153 These
instructions should leave no doubt as to what is required of the trial
court on remand. 154 For example, "[i]f the case is to be remanded for
a new trial, it is sometimes necessary to spell out the scope of the
new trial, whether complete or limited to certain issues." 155 Finally,
the opinion will end with a signature line for the judge's signature.
Because Preston's use of the Chief Wahoo image was a

fair use, this Court affirms the district court's grant of
summary judgment in favor of Preston.
Judge Richter
2. Drafting Suggestions
Armed with your outline and a template for the opinion, you are
ready to begin drafting the opinion. Judicial opinions, as with other
150. !d. at 60.

151. !d.
152. JOYCE]. GEORGE, JUDICIAL OPINION WRlTING HANDBOOK 301 (5th ed. 2007).
153. !d. at 303.
155. BERNARD E. WITKIN, APPELLATE COURT OPINIONS: A SYLLABUS FOR PANEL
DISCUSSION AT THE APPELLATE JUDGES' CONFERENCE OF THE SECTION OF JUDICIAL
ADMINISTRATION AMERICAN BAR ASSOCIATION (1966), reprinted in SEMINARS FOR
CIRCUIT COURT JUDGES, 63 F.R.D. 453, 515, 560 (Fed. Judicial Ctr. 1972) (quoting
Judge Hamley's remarks at the Appellate Judges' Conference in Montreal on August
7, 1966).
court documents, must be thorough, accurate, logical, grammatically

correct, professional, and timely. 156 The following suggestions will
help you produce documents that satisfy these criteria.
a. Miscellaneous suggestions
Given the caseload that faces the court, it is important that you be
efficient and carefully manage your time. However, as inevitably
happens when writing, you may suffer writer's block. If writer's
block occurs, there is no need to flounder while waiting for the
creative juices to flow. Instead, you should take more proactive
measures. One measure that you can employ is to discuss the case
with the judge so that you know exactly what he or she wants to say
before writing. 157 Another measure you can try is to "[s]tart writing
where you feel comfortable." 158 You need not begin writing the
opinion at the beginning. For many people, the writing process is not
linear. Start with what you know. If you do not feel as though you
know anything sufficiently well to begin writing, which often
happens to novices, just begin drafting. What you write at this point
is not nearly as important as the fact that you are writing. While your
thoughts may be unorganized or ambiguous, later revision and editing
can correct these problems. But if you do not begin to write, you will
have nothing with which to work and will continue to stare at a blank
computer screen or piece of paper. Referring to your outline should
also help with writer's block because you have text on the page and a
format for the discussion. If you failed to draft an outline at the
preparation stage and you are suffering from writer's block, get
started by outlining the discussion.
Another tip with regard to drafting an opinion is that footnotes are
less appropriate in a judicial opinion than in a law review and should
be kept to a minimum. 159 Any information that is necessary to
understand the opinion, or is otherwise sufficiently important to
mention, should be addressed in the body of the opinion rather than
in a footnote. 160 Tangential information, which is commonly
discussed in footnotes, often does not deal directly with the case that
is before the court and, therefore, is not subjected to the same close
and careful scrutiny as the body of the opinion. 161 Thus, a footnote
156. Wright, supra note 10, at 1191-94.

158. !d.
159. JUDICIAL OPINION WRITING MANUAL, supra note 73, at 34.
160. ld.
161. !d.
may not accurately portray the court's view of the case, and worse
still, may throw the rest of the opinion into doubt. 162 Consequently,
footnotes may undermine the goals of justifying the court's decision
to the litigants and the public. But be aware that your judge may
have a different preference.
Additionally, when drafting an opinion, remember to use writing
techniques generally employed by good writers. Do not forget what
you previously learned about writing just because you've moved into
a genre with which you have little experience. Remember to use
those paragraphing rules and to write concisely. Write strong
sentences. If you are a little rusty on good writing techniques, you
can consult any number of resources designed to aid a writer in
improving his or her writing. Two good resources for legal writers to
consult are Just Writing: Grammar, Punctuation, and Style for the
Legal Writer 163 and Plain English for Lawyers. 164
Furthermore, when drafting an opinion, you should mimic the
judge's writing style. Because writing is connected to personality, 165
each judge has his or her own individual writing style. 166 While some
judges prefer complex sentences and an extensive vocabulary, other
judges prefer simple declarative sentences and plain English. 167
Because the judge is the one consistent factor in the decision-making
process, and not the numerous judicial clerks who come and go from
the judge's chambers, a judicial clerk should attempt to emulate the
judge's writing style to ensure continuity. 168 To do so, the clerk
should read several of the judge's opinions to become familiar with
his or her writing style 169 and learn from the judge's edits to
documents drafted by the clerk. 170 However, while the judge is the
boss, do not be afraid to make suggestions that would improve the
clarity of the writing. 171
162. Id.
163. ANNE ENQUIST & LAUREL CURRIE OATES, JUST WRITING: GRAMMAR, PUNCTUATION,
AND STYLE FOR THE LEGAL WRITER (2d ed. 2005).
164. RICHARD C. WYDICK, PLAIN ENGLISH FOR LAWYERS (5th ed. 2005).
166. CHAMBERS HANDBOOK, supra note 37, § 7.2(C), at 146.
167. !d.
168. ld.; Judges' Clerks Play Varied Roles, supra note 5, at 39.
169. CHAMBERS HANDBOOK, supra note 37, § 7.2(C), at 146.
b. Tone
The tone of a judicial opmwn should be professional. 172 The
opinion should be respectful of the parties 173 and demonstrate that the
court has carefully considered all the arguments that the parties have
made. 174 To that end, you should write the opinion so that a
layperson with a high school education can understand it.
A judicial opinion must convey information to the reader in a
manner that he or she will understand. Word choice will have the
greatest impact on the reader's ability to comprehend the document.
The use of unfamiliar or arcane words undermines the goal of
conveying information to the reader in a manner that he or she will
understand; therefore, you should select the simplest word that
adequately communicates the idea. 175 Understanding the law is
difficult enough. Do not add to the lay reader's struggle by using
challenging words. Furthermore, the court's use of arcane or
unfamiliar words will not only make the court appear pompous, 176 but
will also alienate lay readers. You might remember reading an
arcane case in your first year of law school to identify with your
audience. This result undermines the goals of a judicial opinion-
justifying the outcome to the losing party and the public in general.
Therefore, when drafting an opinion, you should avoid using
"fancy" words when simple words will suffice. 177 Use simple words
so that the reader need not constantly run to the dictionary to
understand what is being said in the document. When selecting
words, consider how many of your readers are likely to know its
meaning. 178 If that number is low, consider whether there is another
word that expresses the same concept with which your readers will be
more familiar. 179 If so, use the word that would be more readily
understood by a larger audience. 18° For example, do not use
"abecedarian," which few readers will understand, when
"elementary" has essentially the same meaning and far more readers
will be familiar with it. 181
172. Ethical Judicial Opinion Writing, supra note 16, at 35.

173. !d. at 38.
174. See id. at 39.
176. !d.
177. Klein, supra note 40, at 36; Wanderer, supra note 20, at 62.
178. Wanderer, supra note 20, at 62 (quoting Marshall F. McComb, A Mandate from the
Bar: Shorter and More Lucid Opinions, 35 A.B.A. J. 382, 384 (1949)).
179. !d. (quoting McComb, supra note 178).
180. !d. (quoting McComb, supra note 178).
181. See Belt, supra note 45, at 473.
Also, avoid the use of unnecessary legalese. 182 "Legalese is the

language of lawyers, containing words that do not often appear
outside the legal profession." 183 It is a word or phrase that a lawyer
might use in drafting a legal document but would not use in everyday
situations, such as when speaking with her grandparents or spouse. 184
Examples of legalese include "said" or "aforesaid," the use of "same"
and "such" as a pronoun, "hereinafter," and "inter alia." 185
Sometimes, legal language is critical. Legalese is permissible with
terms of art because "they have distinct meanings a synonym cannot
replace." 186 For example, "negligence" is a term of art. 187 To use
ordinary language to convey the same information that is conveyed
by the term "negligence" would take up at least a paragraph of space.
In contrast, many legal writers use the word "said" to mean "the."
For example, said plaintiff then slipped on the ice. "Said" is not a
term of art; rather it is useless legalese.
The use of legalese detracts from the effectiveness of an opinion
just as the use of unfamiliar or arcane words does. 188 The use of
legalese creates a needlessly stilted tone and makes the document one
that cannot easily be understood by the public. Therefore, when
selecting a word, remember that "[t]he best judicial writers try to
express decisions so that a varied audience can understand them." 189
Consequently, a judge, and thus a judicial clerk, "must translate
legalese into language comprehensible for those not trained in the
law."I9o
Additionally, avoid using humor in a judicial opinion. 191 Humor
interferes with the goals of justifying the outcome to the litigants and
the public. First, it fails to show the litigants the proper respect by
making light of their situation. 192 Second, the use of humor may
cause a reader to question whether the court has truly given careful

184. Smith, Opinion Writingfor New Judges, supra note 35, at 209.
185. /d. at 209-10.
186. Ethical Judicial Opinion Writing, supra note 16, at 23. While some legalese cannot be
avoided in legal writing because it has become a term of art, most legalese is
avoidable. Id.
187. Other examples of legalese that are terms of art include "plaintiff," "hearsay," and
"felony." Jd.
189. Jd.
191. See id. at 35-36.
192. See id. at 36.
thought to the decision. 193 Third, not everyone shares the same sense
of humor. Finally, humor may have a negative effect on the public's
perception of the court system because it appears that the judge does
not take judicial duties seriously.
c. Editing and proofreading the opinion
Every document issued by a court must be accurate in every way.
The quality of a court document, particularly a judicial opinion, is
determined by its "tone, organization, style, method, and
reasoning." 194 A document should read easily and flow smoothly
from one section to another. 195 Furthermore, a document that
contains misspelled words or inaccurate citations shows a lack of care
in the document's preparation and brings the accuracy of the
substance of the document into question. 196 Because sloppy writing
suggests that the writer put insufficient time into drafting the
document, 197 a writer must edit and proofread a document to ensure
that it is error free and professional in appearance before submitting it
to the judge. While editing corrects large scale problems with the
document's organization, reasoning, and readability, proofreading
focuses on minutia such as typographical, grammatical, and format
errors. These tasks are of the utmost importance.
The primary goals of editing are to improve the organization of the
document and the manner in which the law or facts have been
presented, eliminate verbosity and ambiguities in the text, improve
writing style, correct grammar and punctuation errors, and ensure that
citations are included where necessary. 198 While editing, you must
also confirm that the cases cited in the draft stand for the proposition
of law for which the cases are cited. 199 When editing your own work,
it is best to set the completed draft aside for at least a day before
starting the editing process. 200 Time away from the draft will provide
you with a fresh view of the document. 201 A fresh view will allow
you to identify larger issues, such as poor organization or faulty
reasoning, as well as smaller issues, such as a missing citation or a
poorly written sentence.
193. !d.
194. !d. at I.
195. See id. at 22.
196. CHAMBERS HANDBOOK, supra note 37, § 7-3, at 167; Wright, supra note 10, at 1191.
198. See CHAMBERS HANDBOOK, supra note 37, § 7-2(8), at 145.
199. See id. § 7-2(A), at 144.
200. !d. § 7-2(B), at 145.
201. !d.
There are several other techniques that may aid you when editing a
draft. One technique that you may use when editing a draft is to read
the document out loud. 202 Reading the draft out loud may reveal
problems with the structure of a particular sentence or paragraph.
Yet another technique is editing in stages, with the focus at each
stage being on a different issue. For example, during the first stage,
you could review the draft looking only for grammar and punctuation
problems. Once these problems have been corrected, you could then
review the opinion to ensure that the style is consistent with that of
the judge. Next, you could review the document with an eye toward
missing citations. Finally, after you have edited the document using
some combination of the above-mentioned techniques, you should
ask another person, for instance a co-clerk, to review the draft and
make suggestions for improvement. 203
Once you have made any improvements suggested by the
individual who reviewed your draft, and you are satisfied with the
substance of the opinion, you are finished with the editing stage.
Your final task is proofreading the document to eliminate sloppiness,
such as typographical, grammatical, and format errors. 204
Additionally, compare the case title to the docket sheet to ensure that
the names of the parties are correct and that the case number is
accurate. 205 Proofreading demands meticulous attention to detail and
painstaking care. 206 You may have to scour the document again and
again to ensure maximum accuracy. Do not be tempted to skip this
step in order to save time-proofreading is a necessary step in the
writing process. The judge will evaluate your writing, and if your
work looks sloppy, the judge will conclude that the substance of the
document is sloppy as well.
Just as with editing, you should put the opinion aside for at least a
day before starting the proofreading process. 207 Time away from the
document will allow you to see small problems such as citation
errors, repetition of words, superfluous words, missing letters or
words, and missing punctuation marks. For example, a fresh view of
the draft will allow you to see that you typed the word "statue" when
you really intended to type "statute." In addition to searching for
citation errors and superfluous or missing words or punctuation
202. !d.
203. !d.
204. !d. § 7-3, at 167.
205. !d. § 7-3(A), at 169.
206. !d.
marks, you must ensure that any quotations are carefully and
accurately quoted.
Another helpful technique that you may employ is reading the
document backwards. Skimming the draft from the end to the
beginning prevents the writer's mind from filling in what the writer
expects to see by taking the text out of context. Employing this
technique will allow you to notice if a word or punctuation mark is
out of place or missing. For example, when reading the document
backwards you may notice that a quotation is missing an opening or
closing quotation mark.
When proofreading citations, you must ensure that the format of
the citations is proper and complies with that used by the court. The
citation format is likely to comply with that set forth in either the
local court rules or a common citation system used by either The
Bluebook? 08 or the ALWD Citation Manual. 209 For cases cited in the
opinion, you must make certain that the parties' names are spelled
correctly, and that the volume, court, page number, and year of the
decision is accurate.
Once you have finished editing and proofreading the opinion, it
should be free of large scale problems with organization and
reasoning and small scale problems such as typographical,
grammatical, and citation errors. When you are satisfied with the
substance of the opinion and sure that the document is professional in
appearance, you should submit the draft to the judge. The judge will
review the opinion and make some alterations. While the judge may
electronically change the document, you may be expected to do so. If
so, you should make the changes in a timely fashion and return both
the original, marked-up copy of the draft, and the amended draft to
the judge for further review. 210 This cycle may continue many times
before the opinion is final.
You should, however, be prepared for the judge to scrap the draft
opinion and tell you to start over with a different focus. 211 If this
occurs, you should not take this constructive criticism as a personal
affront, but should use the situation as a learning experience.
Although the opinion drafting process relies on collaboration between
the judge and the judicial clerk, it is imperative that you keep in mind
that "the entire adjudicative function and decision-making
208. THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass'n eta!.
eds., 18th ed. 2005).
209. ALWD CITATION MANUAL: A PROFESSIONAL SYSTEM OF CITATION (Ass'n of Legal
Writing Dirs. & Darby Dickerson eds., 3d ed. 2006).
210. CHIPCHASE, supra note 116, at 55.
211. !d.
process ... remain exclusively with the judge." 212 While the judge
must agree with every word that you have written in the opinion, the
reverse is not true. You need not agree with the outcome desired by
the judge. But even if you do not agree with the judge's decision and
reasoning, you must do as the judge dictates. 213 The judge is
ultimately responsible for the opinion, not you.
C. Checklist for Critiquing an Opinion
When drafting the opinion, and before submitting it to the judge,
consider the following questions to determine whether the opinion
does everything that it needs to do and is accurate.
Does the court have jurisdiction over the matters before
it?
Are all the legally significant facts included in the
statement of the facts?
Are all the factual statements in the opinion supported by
references to the evidence, including depositions,
documents, admissions, responses to interrogatories,
affidavits, hearing or trial transcripts, and exhibits?
Are the issues to be decided clearly stated in one location
rather than scattered throughout the opinion?
Have all issues been addressed?
Have the facts supporting the losing party been stated?
Have the arguments of the losing party been stated and
adequately addressed?
Do the cases cited stand for the propositions for which
they are asserted?
Are the conclusions in the opinion supported by clear
reasoning and legal authorities?
Is the court's ruling stated clearly and succinctly?
Have all omissions from quotations been indicated with
ellipses?
Are all dates and numbers accurate?
Are all direct quotations from depositions, documents,
admissions, responses to interrogatories, affidavits,
hearing or trial transcripts, and exhibits, or legal authority
perfectly accurate?
212. Ethical Judicial Opinion Writing, supra note 16, at 69; Judges' Clerks Play Varied
Roles, supra note 5, at 35.
Is the opinion free of grammar, punctuation, and citation

errors, or typos?
Have all parties been treated with respect? 214
III. BENCH MEMORANDA

Another document that you may be asked to draft is a bench
memorandum. Unlike a judicial opinion, no one will read a bench
memorandum but the judge in a trial level case or the panel of judges
assigned in an appellate case. A bench memorandum aids the judge's
preparation for a motion hearing or for oral argument for an
appeal. 215 The document is generally just a few pages in length 216
and is essentially a report that familiarizes the judge with the issues
before the court on a motion or on appeal, summarizes the briefs of
the parties before oral argument, narrows the judge's focus to areas
that may require more inquiry, and often recommends an outcome for
the case. 217 A bench memorandum must not only be impartial and
critical, but must be thorough enough to summarize the issues in the
case without being so thorough that the judge would have been better
served by reading the briefs and the record him or herself. 218
A. Preparing to Draft the Bench Memorandum
Preparing to draft a bench memorandum is quite similar to
preparing to draft a judicial opinion. First, you should read the case
record, 219 including any trial transcripts and the briefs of the litigants.
While reading the record and the briefs, you must identify what
issues will be before the court during oral argument and determine
which facts are relevant to the resolution of those issues. You should
then examine the authorities relied on by the litigants in their briefs 220
and update that research to ensure that no new authorities have been
issued since the briefs were filed (a hearing may occur several years
after the filing of the briefs). Additionally, you should identify any
issues that may require clarification or more research and devise a list
of questions that the judge may need to ask during the hearing.

215. CHAMBERS HANDBOOK, supra note 37, § 7-2(f)(2)(a), at 151; LEMON, supra note 82,
at 18.
216. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at !51.
218. !d.
219. LEMON, supra note 82, at 18.
220. !d.
Finally, you should draft a detailed outline of the bench

memorandum.
When drafting the memorandum itself, it is important to check with
the judge regarding the desired format for the bench memorandum.
The judge may or may not approve of the template set forth below.
You should ask the judge for a sample bench memorandum that has
been prepared by a predecessor. A sample bench memorandum will
provide you with a template that the judge previously found
acceptable.
B. Drafting the Bench Memorandum
1. Format of a Bench Memorandum
While the format of the bench memorandum varies based on the
individual court, such memoranda often include reference to the
facts, the manner in which the case came to be before the court, the
jurisdiction of the appellate court, the issues on appeal and the
arguments of the litigants with regard to those issues, the holdings of
significant cases, and any areas of uncertainty that remain. 221 Finally,
while some judges want a conclusion or recommendation, others do
not. 222 Thus, when drafting a bench memorandum, organize the
information in a familiar scheme using the template set forth below.
This template should be modified to comply with the requirements of
the individual judge.
If drafting a bench memorandum at the appellate level, you should
cite to the parties' briefs and the excerpts of record. 223 When citing
to the briefs and excerpts of record, clerks commonly use several
abbreviations. Because the cover on the appellant's opening brief is
blue, the abbreviation for this document is "Blue Br." 224 The same
reasoning holds true for the appellee's response brief, which is
referred to as "Red Br.," and the appellant's reply brief, which is
designated "Gray Br." 225 The excerpts of record are abbreviated
"ER" and supplemental excerpts of record are abbreviated "SER." 226
The presentence report is abbreviated "PSR" and the administrative

222. /d.; see also CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 151 (explaining
that some judges discourage their law clerks from using "any conclusory language
until after the case has been argued and thoroughly researched").
224. /d.
225. /d.
226. /d.
record, if there is one, is abbreviated "AR." 227 While these

abbreviations are commonly used by appellate clerks, if you receive
differing instructions from your judge regarding abbreviations, follow
the judge's instructions.
a. Memorandum heading
Begin the bench memorandum with a heading that includes the
following information: the type of document that is being presented
to the court; the name of the judge or judges for whom the
memorandum is written; the name of the person who prepared the
memorandum (your name!); the date the memo was prepared; and the
caption of the case followed by the docket number of the case. 228
Your judge may require you to include other information following
the memorandum heading, such as the city where the oral argument is
to occur, the date on which the oral argument is to take place, 229 and
the name of the lower court that decided the matter, with the name of
the presiding judge listed in a parenthetical. 230 The judge may also
require that you include your recommendation regarding the
disposition of the case in the information following the memorandum
heading. 231
An example of a memorandum heading is below:
BENCH MEMORANDUM
To: Judges Doe, Davis, and Johnson
FROM: Jane Jones, Law Clerk to Judge Doe
DATE: January 14, 2008
RE: United States v. Smith, 07-1503
b. Overview
The overview follows the memorandum heading and serves a
similar purpose as the introduction in a judicial opinion. 232 The
overview should include information regarding "how the case arose,
227. /d.
228. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 150-51.
230. /d.; CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 151.
231. See LEMON, supra note 82, at 22.
232. /d.
the procedural history and status" ofthe case, "the trial court's ruling,
and which party appealed" the decision of the lower court. 233
An example of an overview is below:
Overview
Defendant John Smith was arrested and charged with
possession of counterfeit currency, possession of
methamphetamine, and use of a gun in the commission of a
drug trafficking crime. On the day his trial was to begin,
Defendant Smith, believing his attorney was unprepared to
proceed to trial and that the court would not grant him a
continuance, pled guilty to all three charges against him.
After he pled guilty, Defendant Smith notified his attorney,
probation officer, and the court that he wanted to withdraw
his plea because he was not guilty. The district court
rejected Defendant Smith's motion to withdraw his plea and
sentenced Defendant Smith to 420 months in custody. On
direct appeal, this Court affirmed Defendant Smith's
conviction by memorandum disposition on July 13, 1992.
Defendant Smith then filed a 28 U.S.C. § 2255 habeas
corpus petition, which the district court denied without a
hearing. On appeal from that decision, this Court remanded
to the district court for an evidentiary hearing on the issue of
whether Defendant Smith received ineffective assistance of
counsel that rendered his plea involuntary. After holding
the evidentiary hearing, the district court again denied
Defendant Smith's petition, finding that Defendant Smith
was not denied effective assistance of counsel. Defendant
Smith appeals.
c. Issue and short answer

This section succinctly summarizes the issues presented in the
appeal and provides a brief answer to those issues. 234 This section is
similar to the Question Presented and Brief Answer sections that you
likely drafted for an office memorandum in your legal writing class.
In a bench memorandum, however, the brief answer must include the
233. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at !51.

legal authority on which the recommended outcome rests and provide

citations to that authority. 235
An example of the issue and short answer section is below:
Issue and Short Answer

Was Defendant Smith's guilty plea involuntary because
he was denied his right to effective assistance of counsel?
Yes. To prevail on his claim that his counsel's ineffective
representation rendered his guilty plea involuntary,
Defendant Smith must establish that (1) his attorney's
representation was outside the wide range of professionally
competent assistance; and (2) Defendant Smith was
prejudiced by reason of his attorney's deficient
representation. Strickland v. Washington, 466 U.S. 668, 687
(1984). To demonstrate prejudice where the defendant has
pled guilty, "the defendant must show that there is a
reasonable probability that, but for counsel's errors, he
would not have [pled] guilty and would have insisted on
going to trial." See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
On the day he entered his guilty plea, Defendant Smith
understood that: ( 1) his attorney was unprepared to defend
him; (2) the court would not grant a continuance;
(3) evidence implicating him in the charged conduct had not
been suppressed; and (4) he faced a possible term of life in
prison if he went to trial and was found guilty. Believing
his counsel's lack of preparation and failure to suppress the
only physical evidence against him made conviction likely,
Defendant Smith pled guilty to avoid a life term. Under the
facts here, his plea cannot be characterized as "voluntary."
See United States v. Moore, 599 F.2d 310, 313 (9th Cir.
1979) ("A plea entered because counsel is unprepared for
trial is involuntary.").
235. !d.; Judges' Clerks Play Varied Roles, supra note 5, at 35.
d. Factual and procedural background

This section provides a description of the events that gave rise to
the litigation and traces the procedural history of the case through the
judicial system. 236 This section should include a concise statement of
facts, which summarizes the legally relevant facts and includes any
necessary contextual facts. 237 Do not simply take the litigants'
version of events as gospel. Verify the litigants' factual statements
by reviewing the record. 238 The decision of the court below is a good
place to find a concise and precise review of the facts. 239 In a
criminal case, the presentence report is also a good place to find a
review of the facts. 240 Remember to cite to the record for each fact
included in the bench memorandum. Citing to the record not only
informs the judge of the location of the fact in the record, but also
that your factual assertions are correct.
Furthermore, when drafting the statement of the facts, distinguish
between facts that are undisputed and those that remain unproven. 241
A simple way to accomplish this is to inform the reader at the
beginning of the statement of the facts that "[t]he following facts are
undisputed unless otherwise indicated." 242 This statement "informs
the reader that any factual statement without a qualifier ('alleges,'
'asserts,' etc.) is an undisputed fact." 243 However, if the litigation is
in the early stages, and discovery has yet to be completed, inform the
reader that "the following facts are taken from the complaint" or that
they "are presented in the light most favorable to the nonmoving
party. ,244
When referring to the parties in an appeal, do not use generic
procedural designations, such as "Appellant," "Plaintiff-Appellant,"
"Petitioner," or "Appellee." 245 Nor should you refer to the parties at
the trial level by their procedural designation, such as "Plaintiff' or
"Defendant." It is clearer to refer to the parties by their name. 246
When there are a number of defendants, however, it is often easier to

237. /d. at 24-25; CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 151.
240. /d.
242. /d. at 38-39.
243. /d. at 39.
244. /d. at 38.
246. !d.
refer to them as a single group by listing them once and then

informing the reader that they will be referred to collectively as
"Defendants." 247 When any governmental agency is a party, you
should refer to that party as "the Govemment." 248
An example of the factual and procedural background is below:
Factual and Procedural Background

A. Underlying Offense & State Court Proceedings
Defendant Smith was arrested on October 4, 1990, while

standing near a car rented by a friend.' (Blue Br. 1.) Police
officers had followed Defendant Smith after receiving a tip
from a confidential informant regarding suspected narcotics
trafficking. (Red Br. 4; Blue Br. 12.) A search of the car
uncovered methamphetamine and a gun. (Blue Br. 2.) The
State of California ("State") charged Defendant Smith with
possession of methamphetamine and a gun. (Blue Br. 2.)
In state court, Defendant Smith moved to suppress the
evidence uncovered in the search of the car. (Blue Br. 2.)
At the suppression hearing, the State argued that the search
was valid on the grounds of consent and as a search incident
to an arrest. (Blue Br. 2.) According to Defendant Smith,
however, the search was not valid because (1) he did not
consent to the search; and (2) he was not arrested until after
the police searched the vehicle. (Blue Br. 2, 12.) Defendant
1. Defendant Smith and his friend had been sharing the car for several days
prior to the arrest. (Blue Br. 11.)
247. !d.
248. !d.
Smith called three witnesses to corroborate his version of

the events surrounding his arrest. (Blue Br. 12.) During the
hearing, the California state court judge indicated that he
thought there was a "tie" between the parties on the issue of
suppression. (See ERG 94, 98. 2) However, before the court
could rule on Defendant Smith's suppression motion, the
State dismissed the charges against Defendant Smith. (Blue
Br. 2.)
B. District Court Proceedings
Defendant Smith was indicted for the same conduct in
federal court on April16, 1991. (Blue Br. 13-14.) On May
20, 1991, Defendant Smith was arraigned and Bob Roe
("Counsel") was appointed to represent him. (Blue Br. 14.)
The arraignment was continued to May 28, 1991, at which
point Defendant Smith pled not guilty and the case was set
for trial on July 2, 1991, thirty-five days later. (Blue Br.
14.) At a June 26, 1991 status conference, Defendant Smith
sought a continuance so that he could retain private counsel
with experience in federal practice. (Red Br. 5.) He also
argued that he needed more time to consider Counsel's
advice that he either plead guilty and serve a twenty-eight-
year term or go to trial and risk life in prison. (ER L 4.)
The court denied Defendant Smith's request for a
continuance, informing Defendant Smith that he was
already represented by a competent attorney and that the
trial would start on July 2, 1991, as scheduled. (ER L 4.) In
response, Defendant Smith stated that he wished to plead
guilty. (ER L 4.) The court refused to accept Defendant
Smith's plea, putting the matter over until the next day to
"let [Defendant Smith] think about it." (ER L 4.)
The next day, Defendant Smith again stated that he would
like a different attorney, claiming that Counsel had not
spoken to him about the case, had advised Defendant Smith
2. Because the Excerpts of Record are not consecutively paginated, the

excerpts will be cited by tab letter followed by page number or page
range.
to plead guilty, and had stated that it was now "too late" to
file any papers, that Defendant Smith would lose and be
sentenced to life in prison. (ER M 3.) In response to
Defendant Smith's statements, Counsel maintained that he
had spoken with Defendant Smith about the facts of the case
and that he had no position on Defendant Smith's request
for a different attorney. (ER M 4.) The court denied
Defendant Smith's request, telling Defendant Smith that he
could not 'lj]ust keep changing attorneys because [he]
wanted to change attorneys." (ER M 4.) Unless Defendant
Smith had "somebody here that [he was] going to retain and
who will be ready for trial when this matter is set for trial,
[Counsel] will be your lawyer." (ER M 4-5.) Concluding
that Defendant Smith was not ready to enter a plea on that
day, the court indicated that the matter was set for trial and
would begin on the scheduled day. (ER M 5.)
On the first day of trial, Counsel informed the court that
Defendant Smith intended to plead guilty to the three
charges against him. (ER N 4-6.) After being sworn,
Defendant Smith prefaced his plea by stating that he had
arranged for substitute counsel to represent him, but that this
attorney was unable to represent him without a continuance
because he was involved in another matter. (ER N 4.)
Defendant Smith continued that he was pleading guilty
because he was "unable to get this matter continued to allow
[substitute counsel] to appear for [him] in court." (ERN 4-
5.)
The court responded to Defendant Smith's statements by
advising him that no one would force him to plead guilty,
but that he would be forced to go to trial on that day. (ERN
5.) The court then asked whether he wanted to plead guilty
or go to trial. (ERN 5.) Defendant Smith responded that he
wanted to plead guilty because there was no time to present
evidence. (ER N 5.) The court responded that Defendant
Smith was free to present evidence during the trial, but that
the cou.rt would not wait for substitute counsel to decide
whether he was retained or not. (ER N 5-6.) The court then
asked whether Defendant Smith was pleading guilty because
he was guilty or "just because [he] want[ ed] to plead
guilty." (ERN 6.) Defendant Smith responded that it was
because he was guilty. (ER N 6.) As the court informed
him of the implications of his plea on his constitutional right
to a jury trial and to appeal, Defendant Smith stated that he

understood these rights. (ER N 6-7.) He also responded
"yes" when asked whether his plea was voluntary. (ER N
10.)
After pleading guilty, Defendant Smith told his probation
officer, lawyer, and the court that he was not guilty and
wished to withdraw his plea. (Blue Br. 3; ER 0.) At his
sentencing hearing, Defendant Smith again informed the
court that he wished to withdraw his plea and moved to
continue sentencing pursuant to Federal Rule of Criminal
Procedure 32(d), so that he could retain counsel to withdraw
the plea. (ER P 5.) At that time, he also presented a letter to
the court detailing his dissatisfaction with his appointed
counsel. (ER P 5-6.) In the letter, Defendant Smith
complained that Counsel: (1) never asked him about the
facts of the case; (2) never filed any motions, such as a
motion to suppress; (3) did not review the case with
Defendant Smith until three days before trial, at which point
he said it was "too late" to investigate leads Defendant
Smith suggested; (4) did not have time to subpoena or
interview witnesses who had testified previously in the state
suppression hearing; (5) told him it was "too late" to get
fingerprints of the items found in the search of the car; (6)
failed to investigate evidence inculpating another person; (7)
neglected to receive the state court transcripts until after
Defendant Smith pled guilty; (8) had not had time to refute
errors in the presentence report ("PSR"); and (9) refused to
file Defendant Smith's motion to withdraw his plea. (ER
0.)
After recessing and reviewing the letter, the court
questioned Counsel about Defendant Smith's complaints.
(ER P 7-8.) Counsel disputed Defendant Smith's account,
contending that Defendant Smith had refused to meet with
him prior to trial and had informed Counsel that he had
another attorney. (ER P 9.) Nevertheless, Counsel
submitted that he continued to prepare for the upcoming
trial. (ER P 9-10.) Counsel also stated that he did not
believe there were any valid motions to file in this case.
(ER P 10.) The court rejected Defendant Smith's motion,
finding that Defendant Smith was not entitled to withdraw
his plea or to a continuance. (ER P 10.) In explaining its
ruling, the court told Defendant Smith, "You cannot make a

change every time you want to make it. As I think I've
indicated to you on a prior occasion, we don't do things
your way. We do them the way they are supposed to be
done, by reason of the rules." (ER P 10.)
Prior to Defendant Smith's mention of a continuance,
Counsel had asked the court to consider a reduction for
Defendant Smith's acceptance of responsibility based on his
guilty plea and for leniency in sentencing due to a lack of
violent crime in Defendant Smith's criminal histmy. (ER P
4-5.) After the discussion regarding Defendant Smith's
complaints against Counsel's representation, Counsel made
no further comment. 3 (See ER P 10-15.) Instead,
Defendant Smith presented his sentencing argument to the
court without assistance from Counsel. 4 (See ER P 10-15.)
The district court sentenced Defendant Smith to 420 months
in custody for possession of counterfeit currency in violation
of 18 U.S.C. § 472, distribution of 66 grams of
methamphetamine in violation of21 U.S.C. § 84l(a)(l), and
carrying a firearm in a drug trafficking crime in violation of
18 U.S.C. § 924(c)(l). (Blue Br. 5.)
This Court affirmed Defendant Smith's conviction by a
memorandum disposition on July 8, 1992. No. 12-345,
2007 WL 12345, at *1 (M.D. Cal. Apr. 1, 2007). 5 In that
appeal, Defendant Smith had argued that the district court
erred in denying his motion to withdraw his guilty plea. !d.
Although the Court held that the district court did not abuse
its discretion by denying the motion, id. at *2, it also noted
that Defendant Smith's claim of ineffective assistance of
counsel was more appropriately raised as a 28 U.S.C. §
2255 habeas corpus petition, id. at *4 n.l.
3. Before the sentencing hearing, Counsel had filed a sentencing

memorandum on Defendant Smith's behalf. In that memorandum.
Counsd argued for a reduction in sentence based on Defendant's
acceptance of responsibility. (ER J 5.)
4. In the remainder of the hearing, Defendant Smith attempted to detail the
changes and corrections he had to the probation report and to argue with
the court that certain past offenses should not be considered in
determining whether he qualified as a "career criminal." (ER P 10-14.)
5. This citation is fictitious. It was made up for purposes of this writing
sample.
C. Defendant Smith 's Habeas Motion
Taking this Court's suggestion, Defendant Smith filed a§

2255 habeas petition in district court. (Red Br. 12.) The
disirict coUl"i dismissed the motion without holding an
evidentiary hearing. (ER B.) Defendant Smith appealed.
(Red Br. 16.)
This Comi remanded to the district court, finding that
"[a]n evidentiary hearing [wa]s necessary to determine the
validity of Defendant Smith's claim that he [pled] guilty
because of Counsel's ineffective representation and the
district court's refusal to grant a continuance left Defendant
Smith with little or no choice other than to plead guilty."
2007 WL 12345, at *2. This Court also remanded on the
question whether Defendant Smith received ineffective
assistance at sentencing. 6 !d. at *4. In remanding, the Court
found that "[t]he extent of the conflict between Counsel and
Defendant Smith at the sentencing hearing, in regard to
Defendant Smith's allegations of Counsel's ineffective
assistance and to Counsel's silence when Defendant Smith
presented his sentencing argument, are enough to raise a
factual question about whether Defendant Smith received
effective assistance of counsel at his sentencing." Id. at >:'4-
*5.
On remand, the district court held an evidentiary hearing
on Defendant Smith's § 2255 petition on June 10, 2002.
Counsel testified7 that he had not reviewed the facts of the
case with Defendant S-::r..ith because Defer.dant Smith ei~her
refused to discuss the facts with him or refused to meet with
him. 8 (ER J 1-2.) Nevertheless, Counsel maintained that he
6. The iliscussion of this issue has been omitted for the purposes of this
sample writing.
7. The direct testimony of Counsel and Defendant Smith was given through
affidavits. Both were then subjected to cross-examination on their
affidavits and to further questioning by the court. Three additional
witnesses provided direct and cross-examination testimony.
8. This is in contrast to his statement at the June 27, 1991 status conference
wher<! Counsel maintained that he had discussed the case with his client.
(Compa;·e ER M 4, withER J 1-2.)
continued to prepare for trial by: (1) consulting with a

supervisor; (2) having a second attorney and an investigator
assigned to the case; and (3) preparing voir dire questions,
jury instructions, opening statement, closing argument,
cross-examination, and direct examination of defendant in
the event he elected to testify. (ER J 1-2.)
Counsel also challenged Defendant Smith's statements
regarding his representation. For instance, Counsel stated
that he never advised Defendant Smith to plead guilty or
told him that he would receive a twenty-eight-year sentence
if he did, but rather, that he notified Defendant Smith of the
prosecution's proposed plea agreement and explained the
U.S. Sentencing Guidelines to Defendant Smith. (ER J 2-
3.) In addition, according to Counsel, Defendant Smith
failed to inform him that a suppression motion had been
filed in state court. (ER J 4.) Finally, Counsel defended his
representation of Defendant Smith at sentencing, noting that
he had filed a sentencing memorandum requesting a
downward departure for acceptance of responsibility and
had argued for leniency at the hearing. (ER J 5.)
According to Counsel, there was no conflict between him
and Defendant Smith that prevented him from effectively
representing Defendant Smith at sentencing. (ER J 5; ER
W.)
On cross-examination, however, Counsel admitted that he
was not prepared on the day Defendant Smith's trial was to
begin (ER W 68), but that he never informed the court and
did not seek a continuance (ER W 31 V Counsel also
conceded that he had failed to inform the court of Defendant
Smith's refusal to meet with him or to discuss the facts of
the case with him. (ER W 8.) Indeed, Counsel recognized
that the file documenting the events in this case contained
no mention of any contacts or attempted visits with
Defendant Smith from June 4 through June 20, when
9. It is worth noting, however, that Counsel's failure to notify the court that
he was unprepared could be because Defendant Smith pled guilty before
Counsel could do so.
Counsel noted that he had spoken to Defendant Smith

regarding the prosecution's proposed plea agreement. (ER
W 12, 15; ER X.) In addition, there was nothing in
Counsel's files to indicate that he actually did any work on
the case between June 4 and June 21. 10 (ER W 33.)
Moreover, Counsel acknowledged that he could not have
properly considered whether to file a suppression motion
without first reviewing the pleadings and transcript related
to the state court hearing, which he did not do until after
Defendant Smith pled guilty. (ER W 29, 34.) Neither did
Counsel interview the witnesses who testified in state court.
(ER W 29, 34.) Finally, Counsel conceded that he had
advised Defendant Smith that his options were to proceed to
trial or plead guilty. 11 (ER W 8.)
According to Defendant Smith, Counsel did not discuss
the case or actively prepare for trial for the first three weeks
following his appointment. (ER H 6.) It was not until after
Defendant Smith rejected the prosecution's plea agreement
that he and Counsel engaged in substantial communication
about his case. (ER H 7.) Defendant Smith claims that he
told Counsel about the state court suppression hearing and
the witnesses who testified at that hearing. (ER H 7.) But,
according to Defendant Smith, Counsel told him it was too
late to prepare any motions, to interview witnesses, or
investigate the case. (ER H 7.) Counsel advised Defendant
Smith that if he went to trial and lost, he could face life in
prison. (ER H 8.) If, however, he pled guilty, he would
likely be sentenced to twenty-eight years. (ER H 8.)
Believing his counsel was unprepared to begin trial and
aware that the court would not grant a continuance,
Defendant Smith pled guilty. (ER H 10-11.)
10. It is unclear whether an investigator was assigned to the case before or

after Defendant Smith entered his guilty plea. (See ER W 20-21.) Counsel
acknowledged that normally a memorandum to the file would document
the appointment of an investigator, but the only such memorandum in
Defendant's file is dated after Defendant's guilty plea. (ER W 21.) Even
if an investigator had been assigned to the case at its outset, the record
suggests that the investigator was not given a specific investigative task
until after Defendant Smith pled guilty. (ER W 21.)
ll. As the district court pointed out, however, this is the choice faced by all
defendants.
On cross-examination, Defendant Smith was questioned

about statements he made when he entered his guilty plea,
specifically his statement that he was guilty. (ER W 63-65.)
Defendant Smith testified that he lied at his sentencing
because that was "what you were supposed to do" and
"that's what the courts usually expect." (ER W 60.)
According to Defendant Smith, he had lied on prior
occasions by pleading guilty to crimes he did not commit
because, by doing so, he could "go home." (ER W 64.)
When pressed by the court, Defendant Smith conceded that
he had never been told directly to lie, but that it was his
belief that it was part of the "deal" for him to falsely state
that he was guilty in exchange for a certain agreed upon
sentence. (ER W 65-66.) In this case, Defendant Smith
stated that the court indirectly asked him to lie by forcing
him to choose between going to trial on that day with
unprepared counsel or entering a guilty plea. (ER W 66.)
Defendant Smith also called three additional witnesses.
Two testified that they had contacted Counsel regarding
their testimony at the state suppression hearing. (ER W 43,
47.) Counsel denied that either witness ever contacted him.
(ER W 66-67.) A third witness, an attorney, testified that
he had agreed to represent Defendant Smith if the case could
be continued (ER W 52), and that he had notified the court's
clerk of his possible retention in the event a continuance was
granted (ER W 53). In response to questioning by the court,
the attorney acknowledged that continuances are never
granted over the phone (ER W 53), and that he had not
prepared or submitted a substitution of counsel form (ER W
53-54).
On the day after the evidentiary hearing, the district court
heard the argument on Defendant Smith's motion. After
argument, the court again denied the motion. (ER W 76-
77.) In its oral disposition, the court noted that five years
had passed before Defendant Smith filed his motion and
concluded that the motion was "totally, totally frivolous."
(ER W 76.) The court found that Counsel was credible in
his testimony, but that Defendant Smith and his three
witnesses were not. (ER W 77; ER DD 2.) According to
the court, "[t]he fact that [Counsel] was not ready for trial
on the day of trial doesn't mean that he wasn't preparing for
trial and didn't do the best that he could, and that he didn't
do a competent job in doing what he could with the
evidence that he had." (ER W 77.)
The next day, the court adopted the government's
proposed findings of fact and conclusions oflaw. (ER DD.)
According to these findings: (1) Counsel was unaware of the
state court suppression hearing or other witnesses because
no one had told him about them; (2) Defendant Smith had
refused to discuss the case with Counsel because he wished
to have different counsel; (3) there were no other conflicts
or breakdowns in the relationship that prevented their
communication; (4) despite Defendant Smith's lack of
cooperation, Counsel prepared the case as best he could and
made reasonable strategic decisions about the best way to
proceed under the circumstances; (5) Counsel was unaware
that the private attorney had been contacted or retained as
Defendant Smith's counsel; (6) Counsel provided competent
representation; (7) Defendant Smith's guilty plea was
knowing and voluntary and not the result of ineffective
assistance of counsel; (8) nothing in Counsel's
representation or the court proceedings forced or suggested
that Defendant Smith should untruthfully plead guilty; and
(9) Defendant Smith received competent representation at
sentencing. (ER DD 2-4.) The court concluded that
Defendant Smith's knowing and voluntary guilty plea
precluded him from raising claims of constitutional
violations, including claims of ineffective assistance of
counsel, that occurred before his guilty plea. (ER DD 5.)
Further, even if Defendant Smith had received ineffective
assistance of counsel, nothing in Counsel's representation
forced Defendant Smith to plead guilty. (ER DD 5.)
Finally, Defendant Smith received competent
representation at sentencing and, in any event, he was not
prejudiced by Counsel's failure to speak at the hearing
because Counsel could not have said or done anything more
to reduce Defendant Smith's ultimate sentence. (ER DD 5.)
Defendant Smith appealed the denial of the petition. The
district court denied Defendant Smith's application for a
certificate of appealability. (Blue Br. 8.) This Court
granted a certificate of appealability. (Blue Br. 8.)
e. Standard of review
Unlike in a judicial opinion, in a bench memorandum the standard
of review is usually included in a separate section and given a
heading. However, if the case on which you are working has more
than one issue with different standards of review, then the applicable
standard of review should be included at the beginning of the
discussion of each issue rather than in a separate section. 249
An example of the standard of review section is below:
Standard of Review
This Court reviews a district court's decision to deny or
grant a motion under 28 U.S.C. § 2255 de novo. See United
States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003). We
review findings underlying the district court's decision on a
§ 2255 motion for clear error. See United States v.
Alaimalo, 313 F.3d 1188, 1191 (9th Cir. 2002). Whether a
defendant received ineffective assistance of counsel is also
reviewed de novo. See id. This Court reviews a district
court's finding of facts for clear error. Fry, 322 F.3d at
1200.
f Discussion
The discussion is your analysis of the issues. When there are
multiple issues, you should organize the discussion in separate
sections, with each issue being discussed under a separate heading. 250
When discussing a particular issue, begin by articulating the issue
before the court. Then, summarize the arguments raised by the
appellant or, at the trial level, by the moving party. 251 Next, briefly
summarize the appellee's argument or, at trial, that of the nonmoving
party. Be sure to verify that the authorities relied upon by the
litigants in their briefs stand for the legal propositions that the
litigants claim they do. Follow the summary of the arguments with a
statement of the governing law and apply that law to the facts of the
case, discussing any key cases. 252 Finally, identify for the judge any
matters that should be clarified or explained during oral argument,
including a list of questions that inquiry at oral argument might
249. LEMON, supra note 82, at 28; see also discussion supra Part II.B.I.e.i.
251. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 151.
resolve. 253 If you are using the judge's voice when drafting the bench
memorandum, you can convey questions or observations to the judge
by using footnotes. 254 Then, if desired by the judge, end the
discussion with a brief recommendation regarding how the case
should be resolved. 255
An example of the discussion section of a bench memorandum is
below:
Discussion
Was Defendant Smith's guilty plea involuntary because he
was denied his right to effective assistance of counsel?
Ineffective assistance of counsel deprives a defendant of her
or his Sixth Amendment right to counsel. See Strickland v.
Washington, 466 U.S. 668, 686 (1984) ("[T]he right to
counsel is the right to the effective assistance of counsel.")
(quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)); see also Coleman v. Alabama, 399 U.S. 1, 7 (1970)
(holding that accused criminal defendants are entitled to
counsel at every critical stage of the proceedings against
them). Because he pled guilty, Defendant Smith cannot
raise any claim of a constitutional violation that occurred
prior to entry of that plea. See Tollett v. Henderson, 411
U.S. 258, 268 (1973). Rather, Defendant Smith can only
raise such a constitutional claim to support his assertion that
his plea was not knowing and voluntary. As the Henderson
Court explained,
[A] guilty plea represents a break in the chain of

events which has preceded it in the criminal process.
When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise
independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of
the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea ....
253. Judges' Clerks Play Varied Roles, supra note 5, at 35; CHAMBERS HANDBOOK, supra
note 37, § 7-2(F)(2)(a), at 151.
254. CHIPCHASE, supra note 116, at 27; see also discussion infra Part Ill.B.2.
!d. at 267. "To be voluntary, a plea must be one in which

the defendant is permitted to choose between pleading guilty
and undergoing a trial that comports with the fundamental
principles the Constitution imposes." United States v.
Hernandez, 203 F.3d 614, 626 (9th Cir. 2000).
Defendant Smith argues that Counsel's ineffective
assistance violated his Sixth Amendment right to counsel
and led to a guilty plea that was neither knowing nor
voluntary. (Blue Br. 30.) According to Defendant Smith,
Counsel's performance was deficient due to Counsel's
failure: (1) to inform the court of the complete breakdown in
communication between Counsel and Defendant Smith; 12
(2) to prepare to defend Defendant Smith at trial; (3) to seek
a continuance; 13 (4) to make a motion to suppress; and (5) to
correctly inform Defendant Smith of applicable law and
sentencing alternatives. (Blue Br. 40-54.) According to
Defendant Smith, Counsel's ineffective assistance
convinced Defendant Smith that he could not win at trial
and, thus, caused him to plead guilty involuntarily. (Blue
Br. 40-54.)
To establish that his plea was involuntary because it was
the result of ineffective assistance of counsel, Defendant
Smith must first meet the test articulated in Strickland. See
Hill v. Lockhart, 474 U.S. 52, 56, 58 (1985)
("[V]oluntariness of the plea depends on whether counsel's
advice 'was within the range of competence demanded of
attorneys in criminal cases."') (quoting McMann v.
Richardson, 397 U.S. 759,771 (1970)). Under Strickland, a
defendant claiming ineffective assistance of counsel must
establish that: ( 1) counsel's actions were outside the wide
range of professionally competent assistance; and (2) the
defendant was prejudiced by reason of counsel's deficient
performance. Strickland, 466 U.S. at 669. A deficient
performance is one in which counsel made errors so serious
that she or he was not functioning as the counsel guaranteed
by the Sixth Amendment. !d. at 687. To demonstrate
12. A breakdown of the attorney-client relationship can result in a denial of

the Sixth Amendment right to counsel. See United States v. Moore, 159
F.3d 1154, 1158 (9th Cir. 1998).
13. These first three claims will be analyzed together as part of Counsel's
alleged failure to prepare for trial.
prejudice where the defendant has pled guilty, "the

defendant must show that there is a reasonable probability
that, but for counsel's errors, he would not have [pled]
guilty and would have insisted on going to trial." Hill, 4 74
U.S. at 59.
A. Counsel's Representation of Defendant Smith
1. Failure to Prepare for Trial and to Seek a Continuance
Defendant Smith complains that Counsel: (1) did not meet
with him to discuss the case until shortly before trial; (2)
failed to seek a continuance even though he acknowledged
that he was unprepared for trial; and (3) failed to file a
motion to suppress the evidence seized in the vehicle search.
According to Defendant Smith, his plea was not voluntary
because Counsel was not prepared for trial.
According to both Defendant Smith and Counsel, the two
did not meet to discuss Defendant's case until shortly before
trial was to begin. Counsel attributes this failure to
Defendant Smith's refusal to meet with him on the
occasions he attempted to meet. Defendant Smith claims
that Counsel did not attempt to meet with him until after he
rejected the prosecution's plea arrangement. Regardless of
the reason, it seems unlikely that Defendant Smith pled
guilty entirely because of the lack of communication
between him and Counsel. Rather, this claim will be
analyzed in conjunction with Defendant Smith's claim that
Counsel failed to adequately prepare for trial.
"A plea entered because counsel is unprepared for trial is
involuntary." 14 Moore, 599 F.2d at 313. "Pretrial
investigation and preparation are the keys to effective
representation of counsel. Courts have repeatedly stressed
the importance of adequate consultation between attorney
and client, the interviewing of important witnesses, and
adequate investigation of potential defenses." United States
v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983) (citations
14. The government mischaracterizes Moore's holding by claiming that the

Moore court found a plea voluntary despite the defendant's attorney being
unprepared where the attorney made significant efforts to prepare.
However, what the court in Moore actually found was that the evidence
supported a fmding that counsel was prepared for trial.
omitted). This Court has found counsel ineffective where

the defendant is able to show that "counsel's actions were
deficient and that the deficiency prejudiced the defendant."
Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992)
(vacating judgment of district court where it was not
possible to "determine if counsel's decision was a strategic
one, and, if so, whether the decision was a sufficiently
informed one").
Counsel was appointed to represent Defendant Smith on
May 20, 1991. According to both Defendant Smith and
Counsel, the two did not meet to discuss Defendant Smith's
case until shortly before trial was scheduled to begin.
Counsel attributes this failure to Defendant Smith's refusal
to meet with him. Regardless of the reason, however,
Counsel still had an independent duty to investigate the facts
of Defendant Smith's case. See Sanders v. Ratelle, 21 F.3d
1446, 1456 (9th Cir. 1994) ("[C]ounsel must, at a minimum,
conduct a reasonable investigation enabling him to make
informed decisions about how best to represent his client.").
Indeed, as this Court noted in remanding this action,
Defendant Smith's purported refusal to meet with Counsel
prior to trial was not dispositive. Rather, "[Counsel] still
had the responsibility to prepare for trial, and to seek a
continuance if time was too short." 2007 WL 12345 at *2.
While it is clear that Counsel took some action to prepare
Defendant Smith's case for trial, it does not appear that he
took all reasonable steps to prepare.
Counsel testified that he prepared for trial by: ( 1)
consulting with a supervisor; (2) having a second attorney
and an investigator assigned to the case; and (3) preparing
voir dire questions, jury instructions, opening statement,
closing argument, cross-examination, and direct
examination of defendant in the event he elected to testify.
According to the district court, Counsel's testimony was
credible and established that, even though he was
unprepared on the day Defendant Smith's trial was to begin,
that did not mean he was not preparing for trial or that he
failed to do a competent job with the evidence he had.
Nevertheless, Counsel's own testimony suggests that he
did not undertake his independent duty to investigate.
Counsel testified that he was unprepared on the first day of

trial, but that he did not seek a continuance. 15 See id. at *4
(noting that even if Defendant Smith refused to meet with
him, Counsel "still had the responsibility to prepare for trial,
and to seek a continuance if time was too short").
Moreover, Counsel also conceded that his files contained no
indication that he did any work on Defendant Smith's case
or even attempted to contact Defendant Smith from June 4
through June 20. 16 Of particular concern is Counsel's
concession that he did not review the state suppression
hearing transcript until after Defendant Smith pled guilty
and that he did not interview the witnesses who testified at
that hearing. 17
I 5. The district court found that Counsel's failure to seek a continuance prior
to trial was a "strategic decision" because he was aware that such a request
would be futile, as the court had indicated it would not grant such a
continuance. (ER W 74.) To the court, this suggested that Counsel
planned to seek a continuance on the day of trial by announcing that he
was unprepared to proceed. (ER W 74.) However, the court's own
statements made such a "strategic decision" highly risky. In numerous
statements, the court had made it clear that trial would proceed on that
day, telling Defendant Smith that "we're going to trial, as has been set.
Just understand that it's now been set for July 2nd, and we'll be going to
trial on July 2nd." (ER L 4.)
16. The district court found it important that Defendant Smith conceded that
his search for another lawyer "ate up" three weeks of his time to prepare
for trial. (ER W 72.) To the district court, this indicated that Defendant
Smith chose not to speak with his appointed lawyer because of his intent
to retain alternative counsel. (ER W 72.) However, Counsel's records
contain no indication that he attempted to meet with Defendant Smith
during that time. Moreover, that Defendant Smith was occupied searching
for another attorney did not relieve Counsel of his duty, as attorney of
record, to continue preparing for trial.
17. While this issue is considered separately below, this failure is relevant to
the present discussion because it suggests a lack of preparation that denied
Defendant Smith effective representation. See Kimmelman v. Morrison,
477 U.S. 365, 375 (1986) ("[W]hile respondent's defaulted Fourth
Amendment claim is one element of proof of his Sixth Amendment claim,
the two claims have separate identities and reflect different constitutional
values.").
Counsel acknowledged that he could not have adequately

considered such a motion without reviewing the state court
suppression transcript. Counsel did not offer a strategic
reason for failing to fully investigate the possibility of a
suppression motion. Rather, he contended that he was
unable to do so because Defendant Smith never informed
him of available witnesses or of the suppression hearing in
state court. The district court accepted this as an adequate
explanation.
That no one else told him about the state suppression
hearing should not relieve Counsel of his independent duty
to "undertake reasonable steps to investigate all avenues of
defense." See Tucker, 716 F.2d at 583 n.16; Sanders, 21
F.3d at 1456 ("[C]ounsel must, at a minimum, conduct a
reasonable investigation enabling him to make informed
decisions about how best to represent his client."); see also
Birt v. Montgomery, 709 F.2d 690, 701 (7th Cir. 1983)
("Essential to effective representation ... is the independent
duty to investigate and prepare."); Goodwin v. Balkcom, 684
F.2d 794, 805 (11th Cir. 1982) ("At the heart of effective
representation is the independent duty to investigate and
prepare."). At the very least, Counsel should have reviewed
the state court record before Defendant Smith entered his
guilty plea. By reviewing that docket, Counsel would have
discovered that a suppression hearing had been held. A
review of the transcript would have revealed that the state
court thought the evidence on suppression suggested a "tie."
It would also have revealed possible witnesses to testify at a
suppression hearing in federal court. Counsel had access to
these records; indeed, he testified that he reviewed the
transcript after Defendant Smith entered a guilty plea.
However, this was too late to benefit Defendant Smith.
Counsel's lack of preparation, in particular his failure to
investigate, constituted deficient performance. See
Hendricks, 974 F.2d at 1109. As discussed more fully
below, his counsel's deficient performance clearly
prejudiced Defendant Smith.
2. Failure to Move to Suppress Evidence Seized in the

Vehicle Search
Defendant Smith next complains that Counsel's failure to

move to suppress the evidence seized in the vehicle search
constituted ineffective assistance of counsel.
Where defense counsel's failure to litigate a Fourth
Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must
also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability
that the verdict would have been different absent the
excludable evidence in order to demonstrate actual
prejudice.
Kimmelman, 477 U.S. at 375.
During the state court suppression hearing, the judge
opined that there was a "tie" between the parties on the issue
of suppression. Although the judge never ruled on the
motion, this close call suggests that Defendant Smith had a
meritorious Fourth Amendment claim and that he may have
prevailed if Counsel had filed a similar motion in federal
court. The suppression of the evidence seized-the
currency, gun, and methamphetamine-would likely have
been dispositive as it would have left no other physical
evidence connecting Defendant Smith to the crimes with
which he was charged. More important here, if the evidence
had been suppressed, it is very unlikely that Defendant
Smith would have pled guilty. Counsel's failure to move for
suppression of this evidence constituted ineffective
assistance of counsel and clearly prejudiced Defendant
Smith. See Kimmelman, 477 U.S. at 372.
3. Failure to Correctly Advise Defendant Smith Regarding
Sentencing
Finally, Defendant Smith argues that Counsel rendered
ineffective assistance when he advised him that he would be
sentenced to twenty-eight years (i.e., 336 months) if he pled
guilty, but would face the possibility of life in prison if he
were convicted at trial. Defendant Smith was ultimately
sentenced to 420 months, or thirty-five years, in custody.
According to the PSR, the sentencing guideline for

Defendant Smith's offenses was 360 months to life in
prison. (PSR 23.) This guideline was calculated without a
two-step downward adjustment for acceptance of
responsibility. With such an adjustment, the low end of the
range would have been reduced to 292 months (twenty-four
years and four months). (Red Br. 45 n.8.) The PSR makes
clear that Counsel was not wrong in stating that the high end
of the sentencing range was life imprisonment. Thus,
Defendant Smith's complaint must be that Counsel
incorrectly calculated the low end of the range.
When Counsel advised Defendant Smith of the possible
sentence he would receive if he pled guilty, he was
contemplating that Defendant Smith would receive a
downward adjustment for acceptance of responsibility. In
his sentencing memorandum and at the sentencing hearing,
Counsel sought a downward reduction for acceptance of
responsibility on the basis of Defendant Smith's guilty plea.
Such an adjustment, paired with the five year consecutive
sentence for the firearm offense, would have resulted in a
sentence of twenty-nine years and four months, a difference
of one year and four months from Counsel's calculation of
twenty-eight years. Standing alone, such a miscalculation is
not sufficient to constitute i11effective assistance of counsel.
See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (noting
that "a mere inaccurate prediction, standing alone, would
not constitute ineffective assistance"). Defendant Smith's
ultimate sentence of thirty-five years was the result of his
recanting his admission of guilt, which thereby removed the
possibility of an acceptance of the responsibility adjustment.
B. Was Defendant Smith Prejudiced by the Cumulative

Effect of Counsel's Representation?
Even if Counsel's individual failures are insufficient alone

to justify a finding of ineffective assistance of counsel,
Defendant Smith's claim does not necessarily fail. Rather,
for purposes of ineffective assistance of counsel, "prejudice
may result from the cumulative impact of multiple
deficiencies." Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir.
1995) (quoting Cooper v. Fitzharris, 586 F.2d 1325, 1333
(9th Cir. 1978)). Thus, here, the question is whether
Defendant Smith would not have pled guilty if Counsel had
been properly prepared for trial or sought a continuance and
if he had filed a motion to suppress the evidence seized from

the vehicle search. 18 See Hill, 474 U.S. at 59. Taken
together, Counsel's errors may have caused Defendant
Smith to believe he had no other choice but to plead guilty.
On the day he entered his guilty plea, Defendant Smith
believed that: (1) his attorney was unprepared to defend
him; (2) the court would not grant a continuance;
(3) evidence implicating him in the charged conduct had not
been suppressed; and (4) he faced a possible term of life in
prison if he went to trial and was found guilty. Moreover,
these were not just Defendant Smith's beliefs. Counsel later
acknowledged that he was not prepared to begin trial that
day; the court had repeatedly stated that a continuance
would not be granted; no suppression motion had been filed;
and the PSR stated the maximum guideline as life in prison.
Taken together, these facts-in particular that his attorney
was unprepared and the evidence against him had not been
suppressed-made it all the more likely that Defendant
Smith would be found guilty and face a life term of
imprisonment. This, paired with the court's dogged
insistence on trial beginning on that day, pressured
Defendant Smith into entering a guilty plea against his will.
18. Because 1 do not believe Counsel wildly miscalculated Defendant's

minimum sentence, I do not include that as an error that may have caused
Defendant prejudice. Such a miscalculation, however, may contribute to a
cumulative impact that resulted in prejudice to Defendant. See laea, 800
F.2d at 865 ("[T]he gross rnischaracterization of the likely outcome
presented in this case, combined with the erroneous advice on the possible
effects of going to trial, falls below the level of competence required of
defense attorneys.").
g. Conclusion or recommendation
Finally, if so desired by the judge, you should include your views
on the merits of the case. These views must be supported by analysis
and explanation. Finally, you should include any recommendations
that you may have regarding disposition of the case. 256 At the trial
256. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(2)(a), at 151. These

recommendations may include the clerk's recommendation on whether the court
should decide the matter with a full, per curiam or memorandum opinion.
Additionally, if the clerk recommends either a per curium or memorandum opinion,
level, you will recommend that the judge either grant or deny the
motion before the court. At the appellate level, you will recommend
that the court either affirm the decision of the lower court or reverse
and remand the case back to the trial court for further action.
However, when drafting the recommendation, if you disagree with
the result that binding authority seems to compel, you should express
this disagreement in the memorandum. 257 If you are drafting the
memorandum using the judge's voice, your disagreement and the
basis for that disagreement can be brought to the judge's attention in
a footnote. 258 The judge may agree that justice requires a different
outcome and may be able to distinguish the case before the court
from the seemingly binding precedent. 259 At the appellate level, the
judge may even recommend that the issue be reviewed by the full
court en bane so that the previous precedent could be overturned. 260
An example of the conclusion and recommendation are below:
Conclusion
Defendant Smith has established that, on the day his trial
was to begin, his attorney was unprepared to defend him,
because the attorney had not conducted a reasonable
investigation and had no strategic reason for failing to do so.
Counsel's lack of preparation was only exacerbated by the
district court's rigid and repeated refusal to grant a
continuance. Thus, Defendant Smith faced a Hobson's
choice: proceed to trial with unprepared counsel and risk a
life sentence or plead guilty and receive a lesser sentence.
Believing his counsel's lack of preparation made conviction
likely, Defendant Smith pled guilty to avoid a life term.
That he chose the latter course cannot be called "voluntary"
under the facts here. See Moore, 599 F.2d at 313 ("A plea
entered because counsel is unprepared for trial is
involuntary."). Accordingly, I recommend that the panel
reverse the district court's denial of Defendant Smith's
habeas petition and remand to the district court for a new
trial.
the bench memorandum should include a draft of the recommended document.

Judges' Clerks Play Varied Roles, supra note 5, at 34.
258. CHIPCHASE, supra note 116, at 27; see also discussion infra Part III.B.2.
260. !d.
2. Tone
As with a judicial opinion, a bench memorandum has a formal,
professional tone. However, unlike an opinion, which is always
written in the judge's voice, bench memoranda can be written in
either the clerk's voice or the judge's voice. 261 The voice used when
drafting a bench memorandum is up to the judge's discretion. 262
The difference between the clerk's voice and that of the judge is
essentially a difference in style. 263 When writing in your voice, you
are simply advising the court as to the proper outcome of a case. 264
Thus, you will set forth the facts, the litigants' arguments, and the
governing law in a neutral fashion. You will analyze the issues and
offer a recommendation without writing "the court finds" or "the
court holds." 265 You are not deciding the matter; you are simply
advising the court on the facts and law and offering a
recommendation. While you are offering a recommendation to the
judge as to what the outcome of the case should be, your style should
be more analytical than persuasive. 266 The style you use should be
similar to that which you used when drafting an office memorandum
for a law firm in your first-year legal writing class. The judge will
review all the materials and make the decision. The bench
memorandum simply provides "an analytical framework in which the
judge[] [has] access to the relevant issues, arguments, and controlling
law."267
When you draft the bench memorandum in your voice, it is
important to be diligent in the research and writing process.
Remember that the bench memorandum will serve as the primary
resource when drafting the opinion and disposition of the case
following oral argument. 268 In fact, the bench memorandum itself
can be converted into the opinion by rewriting the memorandum
using the judge's voice. Assuming the judge agrees with your
position on the case's outcome, your recommendation will become
the disposition for the case. 269

262. !d. at 27.
263. !d. at 26.
264. !d.
265. !d.
267. !d.
268. !d. at 20.
269. See id.
In contrast, when using the judge's voice, you should write the
memorandum as if you are speaking for the court. Instead of
advising the judge, you will draft the memorandum as if you were
deciding the matter as the judge. 270 When using the judge's voice,
you will set forth the facts, the litigants' arguments, and the
governing law in a neutral fashion, but instead of advising the court
and offering a recommendation, you will analyze the issues and reach
a decision. 271 "When using the court's voice it is correct to say, 'The
court holds,' and ['the court finds']." 272 Further, you should draft the
memorandum so that when it is complete, the judge could simply
sign it and issue the disposition. 273 Judges who prefer clerks to draft
bench memoranda in the court's voice prefer this because it "avoid[s]
unnecessary work when transforming the memo into the order." 274
3. Editing and Proofreading
Finally, remember to edit and proofread the document before
submitting it to the judge. Just as with an opinion, or any other
document that you submit to the judge, the bench memorandum
should be free of errors and professional in appearance. 275 When
editing a bench memorandum, pay particular attention to the voice
you use when drafting. Do not shift back and forth between your
voice and that of the judge.
C. The Bench Book
Once the bench memorandum is complete, you should incorporate
it into a "bench packet" or "bench book" for the judge. 276 This
packet of information should contain not just the bench
memorandum, but also the docket sheet for the case; the opinion and
disposition of the lower court (or the decision being appealed); the
litigants' briefs; excerpts from the record; any relevant statutes, rules,
and regulations; either the most important cases or summaries of
those cases; and any other important documents from the case file. 277
Just as the bench memorandum helps the judge prepare for oral
argument, the bench book assists the judge during oral argument.

271. See id.
272. !d. at 26-27.
273. !d. at 26.
274. /d. at 27.
275. See discussion -supra Part II.B.2.c. for information on editing and proofreading
techniques.
277. !d. at 52-53; LEMON, supra note 82, at 40.
The bench book compiles pertinent information and documents that

the judge may need to access quickly while on the bench hearing
argument. Additionally, you can use the bench book when drafting
the opinion following oral argument. 278
Ill. JURY INSTRUCTIONS
While judicial clerks at the appellate level will often be required to
draft a bench memorandum, judicial clerks at the trial level will often
be called upon to draft jury instructions. 279 Jury instructions are the
charge that the court gives to the jury at the conclusion of a trial and
before the jury begins deliberations. While the court does not charge
the jury until the end of the trial, procedural rules often require the
judge to disclose the final jury instructions to counsel prior to closing
arguments. 280 Thus, jury instructions must be prepared quickly and
efficiently. 281
A. Preparing to Draft Jury Instructions
The judge will tell you "whether the case will be submitted for a
general verdict or on special interrogatories." 282 With a general
verdict, the jury simply decides the liability or nonliability of the
defendant. 283 With a special verdict, however, the jury makes
findings only on factual issues submitted to them by the judge; the
judge then determines the legal effect of the verdict. 284 It is important
to note that "[t]he use of special interrogatories may substantially
affect the content" of the jury instructions. 285
Drafting clear jury instructions requires expertise in the subject
area. 286 Because jury instructions are a major cause of reversals or
new trials on appeal, it is of the utmost importance that the
instructions be substantively accurate. 287 To ensure accuracy when
you draft jury instructions, you must prepare by consulting the record
and the pretrial order, learning about the issues, and researching
278. See LEMON, supra note 82, at 40.

279. See CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(1), at 148.
280. !d. § 7-2(F)(l), at 149.
281. See id. § 7-2(F)(1), at 148.
282. !d.
283. BLACK'S LAW DICTIONARY 1555 (7th ed. 1999).
284. !d.
286. !d. § 7-2(F)(1), at 149.
287. !d.
relevant authorities. 288 Additionally, you must review the requested

jury instructions submitted by the litigants.
A wealth of resources is available to make drafting jury instructions
easier. The judge will often have standard or form jury instructions
that you may consult. 289 In addition to the judge's personal cache of
instructions, many trial courts have developed pattern or model jury
charges that may serve as a helpful guide. 290 In federal court, several
sources are commonly relied upon when drafting jury instructions, 291
including the Federal Judicial Center's pattern civil and criminal jury
instructions for each federal circuit, 292 Federal Jury Practice and
Instructions, 293 and the Modern Federal Jury Instructions. 294 There
are also form books that include jury instructions for specialized
areas of law, such as antitrust law. 295
B. Format for Jury Instructions
The format for jury instructions is deceptively simple. When
drafting the instructions, you must type each paragraph of an
instruction "on a separate piece of plain, white, letter-sized paper
with the description at the top and numbered" (e.g., Jury Instruction
No. 1), and include the citation to authority at the end of the
paragraph. 296 You should write the instructions using plain language
that a layperson with a high school education could understand. 297
"Each instruction should be written in short, simple sentences,
enumerating the elements of a violation, theory, or defense so that the
jurors can approach a decision step-by-step." 298 Additionally, you
should insert names and facts where appropriate and quote or
paraphrase the pertinent statute or legal rule. 299
288. Id. § 7-2(F)(l), at 148-49.

289. Id. § 7-2(F)(l), at 148.
290. Id. § 7-2(F)(l), at !50.
291. Jd.
292. See, e.g., FED. JUDICIAL CTR., PATTERN CRIMINAL JURY INSTRUCTIONS (1987),
reprinted in SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS-CRIMINAL
(Matthew Bender & Co. 2007).
293. See, e.g., O'MALLEY ET AL., I FEDERAL JURY PRACTICE AND INSTRUCTIONS (6th ed.
2006).
294. See, e.g., SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS-CIVIL (2007).
295. CHAMBERS HANDBOOK, supra note 37, § 7-2(F)(l), at !50.
296. Id. § 7-2(F)(l), at 148.
297. Id. § 7-2(F)(l), at 149.
298. Jd.
299. Id.
Once the proposed jury instructions are complete, but before the
jury is charged, counsel must be given an opportunity to object to the
proposed instructions. 300 These objections are made on the record. 301
If changes to the instructions are necessary following counsels'
objections, the instructions are retyped and the final version of the
instructions is filed in the record. 302 Each version of the jury
instructions, including the jury instructions requested by the litigants
and the proposed jury instructions, are included in the record for
purposes of appellate review. 303
C. Editing and Proofreading

Finally, as with any other document drafted for the court, when
drafting jury instructions you must edit and proofread them before
submitting them to the judge. 304 Not only should jury instructions be
professional in appearance, but they must be free of grammatical and
typographical errors. 305 Jury instructions are, after all, entered into
the record for purposes of appellate review and a "small" error, such
as a misplaced comma, could lead to reversal. 306 Furthermore, jury
instructions must be easily understood by a jury of laypersons and
free of ambiguity. 307
D. Sample Jury Instructions

A set of jury instructions in a criminal case is set forth below.
Remember that each instruction is on a separate page.
300. !d.
301. !d.
302. !d.
303. !d.
304. See id. § 7-3, at 167.
305. See id.
306. See Bridwell v. State, No. 05-07-00258-CR, 2008 WL 467271, at *8 (Tex. App. Feb.
23, 2008).
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
UNITED STATES OF :
AMERICA,
Plaintiff, Case No. 2:06-CR-000
v. Judge Holschuh
JOHN SMITH,
Defendant.
INSTRUCTIONS TO THE JURY
TABLE OF CONTENTS
Introduction ....................................................... 1
Jurors' Duties ..................................................... 2
Presumption of Innocence, Burden of Proof,
Reasonable Doubt ............................................... 3
"Evidence" Defmed ............................................. 4
Consideration of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Direct and Circumstantial Evidence ........................... 6
Credibility ofWitnesses ......................................... 7
Transcriptions of Recordings ................................... 8
Testimony of a Paid Informant Under a Grant of
Immunity ........................................................... 9
Testimony ofLaw Enforcement Officers .................... 10
Court's Questions ............................................... 11
Defendant's Election Not to Testify .......................... 12
Number of Witnesses ........................................... 13
Lawyers' Objections ............................................ 14
Defming the Crime ............................................. 15
Distribution of Cocaine Base (Crack Cocaine) ........... 16
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
Summary ....................................................... 18
Jury Foreperson, Questions from Jury ........................ 19
Research and Investigation .................................... 20
Unanimous Verdict ............................................. 21
Duty to Deliberate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Punishment ...................................................... 23
Verdict Form .................................................... 24
Court Has No Opinion ......................................... 25
Procedure When Verdict Reached .. . .. .. . .. .. . .. . .. .. .. .. .. 26
INTRODUCTION
Members of the jury, now it is time for me to instruct you
about the law that you must follow in deciding this case. I
will start by explaining your duties and the general rules that
apply in every criminal case. I will also explain some rules
that you must use in evaluating particular testimony and
evidence. Then I will explain the required elements of the
crime that the defendant is accused of committing in this
case. And last, I will explain the rules that you must follow
during your deliberations in the jury room, and the possible
verdicts that you may return.
1
JURORS' DUTIES
You have two main duties as jurors. The first one is to
decide what the facts are from the evidence that you saw
and heard here in court. Deciding what the facts are is your
job, not mine, and nothing that I have said or done during
this trial was meant to influence your decision about the
facts in any way.
Your second duty is to take the law that I give you, apply
it to the facts, and decide if the government has proved the
defendant guilty beyond a reasonable doubt. It is my job to
instruct you about the law, and you are bound by the oath
that you took at the beginning of the trial to follow the
instructions that I give you, even if you personally disagree
with them. This includes the instructions that I gave you
before and during the trial, and these instructions. All the
instructions are important, and you should consider them
together as a whole.
The lawyers have talked about the law during their
arguments. But if what they said is different from what I
say, you must follow what I say. What I say about the law
controls.
Perform these duties fairly. Do not let any bias, sympathy,
or prejudice that you may feel toward one side or the other
influence your decision in any way.
2
PRESUMPTION OF INNOCENCE, BURDEN OF

PROOF, REASONABLE DOUBT
As you know, the defendant has pleaded not guilty to the
crime charged in the indictment. The indictment is not any
evidence at all of guilt. It is just the formal way that the
government tells the defendant what crime he is accused of
committing. It does not even raise any suspicion of guilt.
Instead, the defendant starts the trial with a clean slate,
with no evidence at all against him, and the law presumes
that he is innocent. This presumption of innocence stays
with him unless the government presents evidence here in
court that overcomes the presumption, and convinces you
beyond a reasonable doubt that he is guilty.
This means that the defendant has no obligation to present
any evidence at all, or to prove to you in any way that he is
innocent. It is up to the government to prove that he is
guilty, and this burden stays on the government from start to
fmish. You must find the defendant not guilty unless the
government convinces you beyond a reasonable doubt that
he is guilty.
The government must prove every element of the crime
charged beyond a reasonable doubt. Proof beyond a
reasonable doubt does not mean proof beyond all possible
doubt. Possible doubts or doubts based purely on
speculation are not reasonable doubts. A reasonable doubt
is a doubt based on reason and common sense. It may arise
from the evidence, the lack of evidence, or the nature of the
evidence. Proof beyond a reasonable doubt means proof
which is so convincing that you would not hesitate to rely
and act on it in making the most important decisions in your
own lives.
If you are convinced that the government has proved the
defendant guilty beyond a reasonable doubt, say so by
returning a guilty verdict. If you are not so convinced, say
so by returning a not guilty verdict.
3
2008] A Judicial Clerk's Guide to Writing for the Court . 149
"EVIDENCE" DEFINED
You must make your decision based only on the evidence
that you saw and heard here in this courtroom and on the
exhibits that have been admitted into evidence. Do not let
anything that you may have seen, heard, or read outside of
this courtroom influence your decision in any way.
The evidence in this case consists only of what the
witnesses said while they were testifying under oath; the
exhibits that I allowed into evidence; and any stipulations
that the lawyers, on behalf of their clients, agreed to.
Nothing else is evidence. The lawyers' statements and
arguments are not evidence. Their questions and objections
are not evidence. My legal rulings are not evidence. And
any comments I may have made or questions I may have
asked are not evidence.
Make your decision based only on the evidence, as I have
defined it here, and nothing else.
4
CONSIDERATION OF EVIDENCE
You should use your common sense in weighing the
evidence. Consider it in light of your everyday experience
with people and events, and give it whatever weight you
believe it deserves.
5
DIRECT AND CIRCUMSTANTIAL EVIDENCE

Now, some of you may have heard the terms "direct
evidence" and "circumstantial evidence."
Direct evidence is simply evidence like the testimony of
an eyewitness which, if you believe it, directly proves a fact.
If a witness testified that he saw it raining outside, and you
believed him, that would be direct evidence that it was
raining.
Circumstantial evidence is simply a chain of
circumstances that indirectly proves a fact. If someone
walked into the courtroom wearing a raincoat covered with
drops of water and carrying a wet umbrella, that would be
circumstantial evidence from which you could reasonably
conclude that it was raining.
It is your job to decide how much weight to give the direct

and circumstantial evidence. The law does not make a
distinction between the weight that you should give to either
one, or say that one is any better evidence than the other.
You should consider all the evidence, both direct and
circumstantial, and give it whatever weight you believe it
deserves.
The law does require that before convicting a defendant,
the jury must be satisfied from all the evidence in the case
that the government has proved the defendant guilty beyond
a reasonable doubt.
6
CREDffiiLITY OF WITNESSES
Another part of your job as jurors is to decide how
credible or believable each witness was. This is your job,
not mine. It is up to you to decide if a witness's testimony
was believable, and how much weight you think it deserves.
You are free to believe everything that a witness said, or
only part of it, or none of it at all. But you should act
reasonably and carefully in making these decisions.
Let me suggest some things for you to consider in
evaluating each witness's testimony:
1. Ask yourself if the witness was able to clearly see or hear
the events concerning which the witness testified.
Sometimes even an honest witness may not have been able
to see or hear what was happening, and may have made a
mistake.
2. Ask yourselfhow good the witness's memory seemed to
be. Did the witness seem able to accurately remember what
happened?
3. Ask yourself if there was anything else that may have
interfered with the witness's ability to perceive or remember
the events.
4. Ask yourself how the witness acted while testifying. Did
the witness appear honest? Or did the witness appear to be
lying?
5. Ask yourself if the witness had any relationship to the
government or the defendant, or anything to gain or lose
from the case, that might influence the witness's testimony.
Ask yourself if the witness had any bias, or prejudice, or
reason for testifying that might cause the witness to lie or to
slant the testimony in favor of one side or the other.
6. Ask yourself if the witness testified inconsistently while

on the witness stand, or if the witness said or did something
(or failed to say or do something) at any other time that is
inconsistent with what the witness said while testifying. If
you believe that the witness was inconsistent, ask yourself if
this makes the witness's testimony less believable.
Sometimes it may; other times it may not. Consider
whether the inconsistency was about something important,
or about some unimportant detail. Ask yourself if it seemed
like an innocent mistake, or if it seemed deliberate.
7. And ask yourself how believable the witness's testimony
was in light of all the other evidence. Was the witness's
testimony supported or contradicted by other evidence that
you found believable? If you believe that a witness's
testimony was contradicted by other evidence, remember
that people sometimes forget things, and that even two
honest people who witness the same event may not describe
it exactly the same way.
These are only some of the things that you may consider
in deciding how believable each witness was. You may also
consider other things that you think shed some light on the
witness's believability. Use your common sense and your
everyday experience in dealing with other people. And then
decide what testimony you believe, and how much weight
you think it deserves.
7
TRANSCRIPTIONS OF RECORDINGS
You have heard some recordings that were received in
evidence, and you were given some written transcripts of the
recordings.
Keep in mind that the transcripts are not evidence. They
were given to you only as a guide to help you follow what
was being said. The recordings themselves are the
evidence. If you noticed any differences between what you
heard on the recordings and what you read in the transcripts,
you must rely on what you heard, not what you read. And if
you could not hear or understand certain parts of the
recordings, you must ignore the transcripts as far as those
parts are concerned.
8
TESTIMONY OF A PAID INFORMANT UNDER A

GRANT OF IMMUNITY
You have heard the testimony of John Doe. You have
also heard that he received money from the government in
exchange for providing information, and that the
government has promised him that, in exchange for his
cooperation, he will not be prosecuted for possession of a
$20 rock of crack cocaine found on his person.
The use of paid informants is common and permissible. It
is also permissible for the government to promise not to
prosecute someone for a crime in exchange for his
cooperation. But you should consider John Doe's testimony
with more caution than the testimony of other witnesses.
Consider whether his testimony may have been influenced
by what the government paid him or what the government
promised him.
Do not convict the defendant based on the unsupported
testimony of such a witness, standing alone, unless you
believe his testimony beyond a reasonable doubt.
9
TESTIMONY OF LAW ENFORCEMENT OFFICERS

You have heard the testimony of Special Agents Jane
Jones and Tom Taylor of the Bureau of Alcohol, Tobacco,
Firearms and Explosives.
The fact that a witness may be employed by the federal
government as a law enforcement official does not mean
that his or her testimony is necessarily deserving of more or
less consideration or greater or lesser weight than that of an
ordinary witness. It is your decision, after reviewing all the
evidence, whether to accept the testimony of these law
enforcement witnesses and to give to their testimony
whatever weight you fmd it deserves.
Earlier, I talked to you about the "credibility" or the
"believability" of the witnesses. And I suggested some
things for you to consider in evaluating each witness's
testimony.
You should consider those same things in evaluating the
testimony of the law enforcement officers.
10
COURT'S QUESTIONS
As you probably noticed, I occasionally ask questions. I
do have the right to ask questions if I think the evidence will
be a little clearer once those questions are answered. If any
of you have concluded from any of my questions that I was
trying to give you my impression of which witnesses were
being truthful, or which party should win this case, that's
simply not so. The credibility or believability of each
witness is solely the function of the jury and not of the
court.
11
DEFENDANT'S ELECTION NOT TO TESTIFY

A defendant has an absolute right not to testify or present
evidence. The fact that he did not testify or present any
evidence cannot be considered by you in any way. Do not
even discuss it in your deliberations.
Remember that it is up to the government to prove the
defendant guilty beyond a reasonable doubt. It is not up to
the defendant to prove that he is innocent.
12
NUMBER OF WITNESSES
One more point about the witnesses. Sometimes jurors
wonder if the number of witnesses who testified makes any
difference.
Do not make any decisions based only on the number of
witnesses who testified. What is more important is how
believable the witnesses were, and how much weight you
think their testimony deserves. Concentrate on that, not the
numbers.
13
LAWYERS' OBJECTIONS
There is one more general subject that I want to talk to
you about before I begin explaining the elements of the
crime charged.
The lawyers have a duty to object whenever they think
that something is not permitted by the rules of evidence.
Those rules are designed to make sure that both sides
receive a fair trial.
Do not interpret my rulings on any objections as any
indication of how I think the case should be decided. My
rulings were based on the rules of evidence, not on how I
feel about the case. Remember that your decision must be
based only on the evidence that you saw and heard here in
court, including the testimony of the witnesses, any
stipulations of the parties, and on the exhibits that have been
admitted into evidence.
14
DEFINING THE CRIME

That concludes the part of my instructions explaining your
duties and the general rules that apply in every criminal
case. I will next explain the required elements of the crime
that the defendant is accused of committing.
But before I do that, I want to emphasize that the
defendant is only on trial for the particular crime charged in
the indictment. Your job is limited to deciding whether the
government has proved each and every element of the
particular crime charged beyond a reasonable doubt.
I turn then to the indictment.
15
DISTRIBUTION OF COCAINE BASE (CRACK

COCAINE)
Title 21 of the United States Code, Section 84l(a)(l),
makes it illegal "for any person knowingly or
intentionally . . . to . . . distribute . . . a controlled
substance." The indictment in this case accuses the
defendant of knowingly and intentionally distributing more
than 50 grams of cocaine base, commonly known as crack
cocaine, a Schedule II controlled substance, in violation of

this statute.
For you to find defendant guilty of this crime, you must be
convinced that the government has proved each of the
following elements beyond a reasonable doubt:
1. That the defendant distributed cocaine base, commonly
referred to as crack cocaine, a Schedule II controlled
substance;
2. That the defendant did so knowingly and intentionally;
and
3. That, at the time of the distribution, the defendant knew
that the substance distributed was cocaine base.
In addition, the government must prove that the alleged
offense occurred, in whole or in part, in the Southern
District of Ohio on or about June 22, 2006, the date alleged
in the indictment.
If you are convinced that the government has proved each
of these three elements beyond a reasonable doubt, and that
the offense occurred, in whole or in part, in the Southern
District of Ohio on or about June 22, 2006, say so by
returning a guilty verdict on this charge. If you have
reasonable doubt about any one of these elements, then you
must fmd the defendant not guilty of this charge.
I will now give you more detailed instructions concerning
each of these elements.
16
DEFINITIONS
"Distribute"
The term "distribute," as used in these instructions, means
to deliver or to transfer possession or control of something
from one person to another. The term "distribute" includes
the sale of something by one person to another.
"Controlled Substance"
You are instructed as a matter of law that cocaine base,
otherwise known as crack cocaine, is a Schedule II
controlled substance.
"Knowingly and Intentionally"
To act "knowingly" means to act voluntarily and with
awareness of the nature of one's conduct, and not because of
ignorance, mistake, or accident. An act is done
"intentionally" if it is done deliberately with the specific

intention to do the act that the law prohibits.
I want to explain something about proving a defendant's
state of mind. Ordinarily, there is no way that a defendant's
state of mind can be proved directly, because no one can
read another person's mind and tell what that person is
thinking. But a defendant's state of mind can be proved
indirectly from the surrounding circumstances. This
includes things like what the defendant said, what the
defendant did, how the defendant acted, and any other facts
or circumstances in evidence that show what was in the
defendant's mind. You may also consider the natural and
probable results of any acts that the defendant knowingly
did, and whether it is reasonable to conclude that the
defendant intended those results. This, of course, is all for
you to decide.
"On or About"
I also want to say a word about the date mentioned in the
indictment. The indictment charges that the crime happened
"on or about" June 22, 2006. The government does not
have to prove that the crime happened on that exact date.
But the government must prove that the crime happened
reasonably close to that date.
"Southern District of Ohio"
The Court takes judicial notice that Columbus, Ohio, is
within the Southern District of Ohio. Because you as
members of the jury are the triers of fact in this case, you are
not required to accept the Court's instruction that Columbus,
Ohio, is within the Southern District of Ohio, and you may
make your own determination of this fact.
17
SUMMARY
Keeping in mind the above instructions regarding the
applicable law, if you unanimously find that the government
has proved beyond a reasonable doubt that the defendant did
knowingly and intentionally distribute cocaine base,
commonly known as crack cocaine, a Schedule II controlled
substance, and that the alleged offense took place, in whole
or in part, in the Southern District of Ohio, on or about June
22,2006, then you must return a verdict of guilty.
However, if you unanimously fmd that the government

has failed to prove beyond a reasonable doubt any one of the
essential elements of the offense, as I have explained those
elements to you, then you must return a verdict of not guilty.
That concludes the part of my instructions explaining the
elements of the crime. Now let me finish up by explaining
some things about your deliberations in the jury room, and
your possible verdicts.
18
JURY FOREPERSON, QUESTIONS FROM JURY

The first thing that you should do in the jury room is
choose someone to be your foreperson. This person will
help to guide your discussions, and will speak for you here
in court.
Once you start deliberating, do not talk to the Court
Security Officer, to me, or to anyone else except each other
about the case. If you have any questions or messages, you
must write them down on a piece of paper, have the
foreperson sign them, and then give them to the Court
Security Officer. The officer will give them to me, and I
will respond as soon as I can. I may have to talk to the
lawyers about what you have asked, so it may take me some
time to get back to you. Any questions or messages
normally should be sent to me through your foreperson.
One more thing about messages. Do not ever write down
or tell anyone how you stand on your votes.
19
RESEARCH AND INVESTIGATION

Remember that you must make your decision based only
on the evidence that you saw and heard here in court. All of
the exhibits that have been admitted into evidence will go to
the jury room with you, together with a copy of these
instructions and the verdict form.
Do not try to gather any information about the case on
your own while you are deliberating. For example, do not
bring any books, like a dictionary, or anything else with you
to help you with your deliberations and do not conduct any
independent research, reading, or investigation about the
case.
Make your decision based only on the evidence that you
saw and heard here in court.
20
UNANIMOUS VERDICT
Your verdict, whether it is guilty or not guilty, must be
unanimous.
To ftnd the defendant guilty, every one of you must agree
that the government has overcome the presumption of
innocence with evidence that proves his guilt beyond a
reasonable doubt. To fmd the defendant not guilty, every
one of you must agree that the government has failed to
convince you beyond a reasonable doubt that the defendant
is guilty of the offense alleged in the indictment. Either
way, guilty or not guilty, your verdict must be unanimous.
21
DUTY TO DELIBERATE
Now that all the evidence is in and the arguments are
completed, you are free to talk about the case in the jury
room. In fact, it is your duty to talk with each other about
the evidence, and to make every reasonable effort you can to
reach unanimous agreement. Talk with each other, listen
carefully and respectfully to each other's views, and keep an
open mind as you listen to what your fellow jurors have to
say. Try your best to work out your differences. Do not
hesitate to change your mind if you are convinced that other
jurors are right and that your original position was wrong.
But do not ever change your mind just because other
jurors see things differently, or just to get the case over with.
In the end, your vote must be exactly that-your own vote.

It is important for you to reach unanimous agreement, but
only if you can do so honestly and in good conscience.
No one will be allowed to hear your discussions in the jury
room, and no record will be made of what you say. So you
should all feel free to speak your minds.
Listen carefully to what the other jurors have to say, and
then decide for yourself if the government has proved the
defendant guilty beyond a reasonable doubt or has failed to
do so.
Juries sometimes ask to have portions of the trial transcript
made available to them during deliberations. A trial
transcript has not been prepared and therefore is not
available to you. Instead, you, as jurors, must rely on your
collective recollection of the testimony of the witnesses.
22
PUNISHMENT
If you decide that the government has proved the
defendant guilty of the charge alleged in the indictment,
then it will be my job to decide what the appropriate
punishment should be.
Deciding what the punishment should be is my job, not
yours. It would violate your oaths as jurors to even consider
the possible punishment in deciding your verdict.
Your job is to look at the evidence and decide if the
government has proved the defendant guilty beyond a
reasonable doubt or has failed to do so.
23
VERDICT FORM
I have prepared a verdict form that you should use to
record your verdict. If you decide that the government has
proved the defendant guilty beyond a reasonable doubt, say
so by having your foreperson mark the appropriate place on
the form. If you decide that the government has not proved
the defendant guilty beyond a reasonable doubt, say so by
having your foreperson mark the appropriate place on the
form.
Each of you should then sign the verdict form and put the
date on it.
24
COURT HAS NO OPINION

Let me finish up by repeating something that I said to you
earlier. Nothing that I have said or done during this trial
was meant to influence your decision in any way. You
decide for yourselves if the government has proved the
defendant guilty beyond a reasonable doubt or has failed to
do so.
25
PROCEDURE WHEN VERDICT REACHED

When you have reached a verdict and have filled out and
signed the verdict form, the foreperson of the jury shall
notify the Court Security Officer that the jury has reached a
verdict.
26
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OIDO
EASTERN DIVISION
UNITEDSTATESOF:
AMERICA,
Plaintiff, Case No. 2:06-CR-000
v. Judge Holschuh
JOHN SMITH,
Defendant.
VERDICT
We, the jury, find the defendant John Smith:
__ Not Guilty__ Guilty of Distribution of Cocaine

Base, a Schedule II Controlled Substance, as alleged in
the Indictment.
United States v. John Smith

Page 2 of2
Foreperson
Date:--------
V. ORDERS
"The purpose of [an] order is to tell the person to whom the order is
directed precisely what to do .... " 308 While no specific or "magic"
language is required to make an order effective, plain language
should be used to avoid ambiguity. Unambiguous language helps the
person to whom the order is directed understand what action is
required of him or her and also allows others to determine whether
that person has completed the action dictated by the court and
whether he or she did it correctly. 309
"Most courts have a standardized format for orders .... " 310 Your
co-clerk and the judge's secretary will be familiar with this format
and, if asked, more than happy to share it with you. 311 The format
generally begins with the caption of the case, which includes the
name of the court, the case number, names of the parties, and the title
of the order. 312 Following the caption is a paragraph that includes the
date of any hearing that may have taken place, the names of counsel
who appeared at the hearing, and the nature of the matter to be
308. !d. § 7-2(F)(6), at 156.

309. !d.
310. !d.
311. See id.
312. !d.
decided by the court. 313 This information should be followed by the

·action that the court is taking and the factual or legal basis for the
court's determination, as well as a statement telling the litigants what
they must do as a result of the court's action. 314 The order should end
with a signature line for the judge's signature. 315
Occasionally, the judge will order counsel for the prevailing litigant
to submit a proposed order for the court's signature. 316 If this occurs,
you should review the proposed order closely to be sure that it
conforms to the judge's determination in court (or conference) and
determine whether the losing party agrees that the order conforms to
the judge's decision. 317 This party's approval is usually indicated by
a signature. 318 However, if the proposed order documents a
stipulation of the parties, you should confirm that the order is
accompanied by a copy of the stipulation that has been signed by all
parties. 319 Additionally, you should confirm that the substance of the
proposed order complies with the judge's directions with regard to
the stipulation. 320
Finally, as with any document drafted for the court, you must edit
and proofread orders to eliminate errors and ambiguity. 321 Given that
the purpose of an order is to tell the person to whom the order is
directed what the court requires him or her to do, it is of the utmost
importance that the court's directive be clear and unambiguous. 322
VI. CONCLUSION
You are undoubtedly excited to begin your judicial clerkship--
there is no better legal training for a new lawyer. As a clerk, you will
gain insight into the decision-making process and learn how the court·
operates from within the judge's chambers. 323 Your clerkship will be
a valuable learning experience. The bottom line, though, is that you
are there not only to learn, but to aid the judge. The purpose of this
article is to help you hit the ground running. You will know the types
313. !d.
314. !d.
315. See id. § 7-2(F)(6), at 157.
316. !d.§ 7-2(F)(6),at 156.
317. !d.§ 7-2(F)(6), at 157.
318. !d.
319. !d.
320. !d.
321. !d. § 7-3, at 167.
322. !d. § 7-2(F)(6), at 156.
323. Seeid. § 1-1,at2.
of documents you may need to draft, how to draft those documents,

how to edit those documents, and how to serve as an ear for the court.
While this article might be somewhat overwhelming at first, for
now know that there are some key points to remember. First, ensure
that you understand the assignment and what is expected of you at the
time the judge gives you the assignment. Second, before ever
beginning to write, you should review the record to gain an
understanding of the issues and to identify the relevant facts. 324
Third, after completing your research of the issue, you should outline
the body of the document because it will aid your organization of the
document and will ultimately save you time. 325 Fourth, when
drafting the document, you should use the good writing techniques
identified in this article and in other sources. 326 Fifth, you should
always edit and proofread any document before submitting it to the
judge. 327 All documents submitted to the judge must be free of
grammar, spelling, citation, and typographical errors. 328 Sixth, know
that it is fine to ask for help if it is needed. Finally, remember to have
fun! A clerkship is, perhaps, the greatest learning experience there is
for a lawyer.
324. See supra text accompanying note 32.

325. See supra text accompanying note 37.
326. See discussion supra Parts II.B.2.a-b.
327. See discussion supra Part II.B.2.c.
328. /d.

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What are some of the common duties of a judicial clerk?

What are some of the common duties of a judicial clerk?

What are some tips for drafting documents as a judicial clerk?

What are some tips for drafting documents as a judicial clerk?

University of Baltimore Law Review

The "Write" Way: A Judicial Clerk's Guide to

Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr

t Jennifer Sheppard is an Assistant Professor of Law at Mercer University School of

administer the docket, 5 serve as a "sounding board[] for the judge's

12. Wright, supra note 10, at 1181.

"[O]pinions are simply explanations for judgments-essays written

29. /d. at 1204.

involved. 41 An opinion is merely intended to inform the litigants and

IN THE UNITED STATES COURT OF APPEALS

MAJOR LEAGUE BASEBALL, INC., Case No. 07-1235

41. OPINION WRITING, supra note 14, at 22.

Edward Richter, Circuit Judge

c. Statement of the facts

56. Wanderer, supra note 20, at 56.

59. Wanderer, supra note 20, at 56.

Subsection 55-B requires a finding of unavailability in order to

67. NEUMANN, supra note 63, § 14.1, at 185.

Finally, when the opinion is complete, be sure to review the

on to detail the adventures of Wilbur Wahoo after his escape

This Court addresses the question whether the district court

74. Wanderer, supra note 20, at 58.

e. Discussion of the issues

85. FED. R. Clv. P. 56(c).

exception of an appeal of a question of law, It Is difficult for an

94. BEAZLEY, supra note 84, at 15.

deferential to findings by juries and administrative agencies, and the

Those are the four most commonly used standards of review.

114. NEUMANN, supra note 63, § 29.3, at 391-92.

most favorable to the nonmoving party. Matsushita Elec.

n. Analysis of the issues

119. See Wanderer, supra note 20, at 59.

The section headings will serve as landmarks so that the reader

threshold issue, such as a statute of limitations question, you should

throughout the opinion, and dispatched in a sentence or two at the

141. Wanderer, supra note 20, at 60.

An example of the discussion of the issues section is found below.

B. The Fair Use Defense to Claims of Copyright

( 1) the purpose and character of the use, including

17 U.S.C. § 107. The presence or absence of any single

Preston's comic book is a parody of the Chief Wahoo

transformative of the original indicates the novelty

image in many ways. Preston gave Wilbur Wahoo limbs, a

comic book. Preston sold her comic book in various comic

the familiar, creative image of Chief Wahoo and

The court noted that a parodist is not required to "take the

for the original or potentially licensed derivatives, it is not a

Chief Wahoo image was fair and MLB' s copyright of the

The conclusion, which is the last paragraph of the opmwn,

Because Preston's use of the Chief Wahoo image was a

150. !d. at 60.

court documents, must be thorough, accurate, logical, grammatically

156. Wright, supra note 10, at 1191-94.

172. Ethical Judicial Opinion Writing, supra note 16, at 35.