Boudin and Lynch: The Elements of Style


The First Circuit issued two interesting and well written opinions recently, one from Judge Boudin (King v. Rivas) and one from Chief Judge Lynch (Day v. Staples, Inc.)  They provide excellent teachable moments, in the lingo of the moment.


This decision is useful substantively because it addresses how to calculate whether a settlement offer is lower than the judgment for Rule 68 purposes when there are multiple parties and a group offer.  As the decision notes, Rule 68 can have real teeth in Section 1983 cases because while an offer lower than the ultimate judgment doesn't shift attorneys fees in the First Circuit, it stops them for a prevailing plaintiff as of the date of the offer.  So there can be a real $ difference. 

But I'm not talking substance today.  The decision touches all the bases and has Judge Boudin's typical conversational style (well, if both people in the conversation are quick thinking law professors with zippy IQs).  It's almost breezy, while retaining gravitas.  You can tell from how he writes decisions that he came from academia, because his writing has that Socratic back-and-forth.  He's talking to himself, explaining each argument and taking them down paths that I suspect even the parties might not have fully plumbed.  In the beginning, when he first came on the bench, some of this verbal ping-pong was quite dizzying, and I would end thinking "so exactly what is the holding?" but either he's calmed down or I'm getting better at this.  Now they seem to me to have a deceptively easy feel.  When drafting a brief I try to get that same almost light, yet serious tone, and to present the arguments in an order that seems to flow naturally.  This is not as easy as it looks, but studying his opinions is a good teaching tool of how to lighten up and be clear without losing gravity.  


This decision exemplifies the well-written Lynch opinion (which is saying a lot):  it has an introduction that explains everything in one or two paragraphs so you can quickly tell whether you need to keep reading; it addresses an interesting issue (the standard for analyzing a whistleblower protection claim under the Sarbanes-Oxley Act); and it reflects thorough research and crackerjack analysis.  

The case has an interesting legal aspect to it – we want to encourage and not penalize whistleblowing, so if a claim is made in good faith, we want to protect the whistleblower; on the other hand, there has to be some level of objective reasonableness to the claim or all work in the country could come to a halt.  The Chief discusses and applies a mild objective standard.

But again forget substance.  The best part of this opinion, and one from which all appellate lawyers can learn, is the fact section.  She does a masterful job of presenting via completely neutral appearing facts a picture of the quintessential whineypants employee – a smartyboots fresh from college who tells everybody what to do and won't listen to explanations why he isn't right. (You know, the kind of guy in your high school political science class who wouldn't shut up?)  The only mystery in this case is why the plaintiff didn't go to law school. 

Experts say that the statement of facts is the most important part of the brief, and this one is one we should all study.  By the end of it you are thinking, "I don't care what the legal standard is, this guy has got to go."  Yet it is completely factual, with no embellishment or commentary.  As I was reading it I was reminded of Melville's Bartleby the Scrivener – it had that same understated tone of a good reporter.  This isn't opinion writing; it's literature.

If we all just imitated CJ Lynch's framework – a snappy intro, masterful fact presentation and concise legal analysis – we'd have better briefs.  The fact that she cranks out so many of these year in and year out is an homage to her and her clerks.