Judicial Writing Wisconsin Tribal Judges Association January 10, 2019 9 AM to 4 PM Paul Stenzel Stenzel Law Office 414-963-9923 paul@paulstenzel.com www.paulstenzel.com

Judicial Writing OVERVIEW Review agenda What are your goals?

Judicial Writing Purposes of writing a decision or order?

Judicial Writing The Template Introduction Facts (Findings) Analysis Conclusions of Law Orders

Judicial Writing Substantive decisions and orders Managerial orders Judgments Decisions on motions Orders on the merits Managerial orders Scheduling orders Setting over a matter Allowing appearance by phone

Judicial Writing Introduction Introduce the case (what is this case about) Brief summary of decision and reasoning Building the container Tell the reader where the decision is going Context

Judicial Writing Facts / Findings Summary of evidence Testimony Documents Other Credibility determinations Judicial Notice

Judicial Writing Findings – may be oral (check your rules) In most cases not in dispute or easy to determine with short amount of testimony In contested hearings, potentially more difficult: More facts Testimony in conflict

Judicial Writing

Judicial Writing

Judicial Writing

Microsoft litigation – 1990s Findings were 207 pages 412 paragraphs

Judicial Writing In order for a court to make a finding of fact, the trier of fact must be satisfied that there is an evidentiary basis sufficient to meet the burden of proof. Testimony --- Finding of Fact Documents --- Finding of Fact Judicial Notice -- Finding of Fact

Judicial Writing Analysis Summary of parties’ positions Identifying issues (issue spotting) Summary of relevant law Application of law to facts This Photo by Unknown Author is licensed under CC BY-ND

Page 14 of materials

Judicial Writing

Judicial Writing Conclusions of law Specific legal orders or findings Sometimes analysis can be within the Conclusions of Law.

Judicial Writing Page 17 in written materials – Case #1

Work on case scenarios as time allows.

Judicial Writing Legal Research (Page 34 of materials) What is the research topic or question? Want to go outside your jurisdiction? What are your resources / sources? Print Online Pay or free

Judicial Writing Learning how to search Choosing your key words Let’s practice Substantial change in circumstances 4th amendment Election dispute

Judicial Writing Stipulations (Page 35 of materials) Gets to the heart of how judicial officials view cases. What is the role / power of a court when parties are trying to settle? This Photo by Unknown Author is licensed under CC BY-SA

Who does a case “belong to”? The court or the parties? Both, neither? What are the limits, if any, of what you will approve if parties have stipulated?

Judicial Writing Agreements between parties in divorce actions are made in contemplation that the court must approve such agreements and usually that the provisions of the agreement, with such modifications as the court shall make in the interest of justice, shall be a part of the court's judgment. * * * * When a court follows and adopts an agreement of the parties making it a part of its judgment, the court does so on its own responsibility, and the provisions become its own judgment. Miner v. Miner, 10 Wis. 2d 438, 443 (Wis. 1960)

Judicial Writing Summary judgment and Motions to Dismiss Page 36 of materials

Judicial Writing Scheduling orders (page 37) Usually to impose some structure on the case Manage the case and give deadlines

Judicial Writing Whether to write and how much (or how formally) (p.38 of materials) Complexity of case Are parties represented How well developed is law Length of order Need for detail Intended audience

Judicial Writing Writing for the Appellate Court (page 39 of materials) Making a good record Explaining key findings / conclusions Considering all factors

THANK YOU! www.paulstenzel.com Attorney Paul Stenzel Stenzel Law Office, LLC PO Box 11696 Shorewood, WI 53211 414-963-9923 www.paulstenzel.com This presentation will be available on my web site.