Michael R. Smith
Changes in "Voice" in the Explanation of a Precedent Case
Legal writing often requires a writer to explain a precedent case. The presentation of a precedent case entails explaining various aspects of the case such as the facts, the issue on appeal, the parties' arguments on the issue, and the deciding court's reasoning and holding. Interestingly, the explanations of these different aspects of a case require a writer to continually change "voices," a phenomenon that may escape many legal writers' notice.
The facts and issue statement of a precedent case are written in the voice of the writer, who functions as a third-party narrator of such information. By contrast, an explanation of a party's argument in a precedent case is written (not surprisingly) in the voice of the party making the argument.
Michael R. Smith is a Professor of Law at the University of Wyoming College of Law and the Director of the Center for the Study of Written Advocacy.
The facts and issue statement of a precedent case are written in the voice of the writer, who functions as a third-party narrator of such information. By contrast, an explanation of a party's argument in a precedent case is written (not surprisingly) in the voice of the party making the argument. Finally, and most importantly, the explanations of the holding and rationale in a precedent case are written in the deciding court's voice, with each sentence being attributed to the court with such phrases as "the court stated," "the court held," "the court went on to state," "the court emphasized," "the court reasoned," "the court distinguished," "the court added," and the like.
Consider the following explanation of a precedent case in a recent opinion written by the...
