In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. . . . Moreover, long opinions, even if correct in every detail, generally make it harder for readers to separate a holding from dicta (or less than dicta: words only of explication and nothing more). The confusion of holding and dicta makes correctly deciding future cases more difficult, when judges are looking back for precedents.This complaint is not a new one; a 1911 Yale Law Journal article discussed factors that were "swelling the length of appellate opinions," and more recent law review articles have conducted empirical examinations of the length of state and U.S. supreme court opinions (all links are to Hein, subscription required). Gerald Lebovits, author of Advanced Judicial Opinion Writing, has also urged judges to reduce their output.
So which Federal Circuit judges are the most prolix? I searched for each judge's 10 most recent patent-related precedential majority opinions (excluding orders, petitions for rehearing, en banc decisions, and the atypical AAMP v. Myriad). (I limited the search to active judges, but I excluded Judge Linn because he is retiring and Judge Reyna and Judge Wallach because they have few precedential patent opinions. I focused on patent opinions because they are of the most interest to this blog's readers and because I think they tend to be longer than, say, veterans appeals.) I then calculated the average number of words per opinion (including footnotes, not including captions). Here are the results, from most verbose to most concise:
- O'Malley – 10,083
- Lourie – 5715
- Newman – 5690
- Bryson – 5441
- Moore – 5331
- Prost – 4751
- Rader – 4671
- Dyk – 4622
Most of the judges average around 5000 words per opinion, but Judge O'Malley is a clear outlier: her average opinion is about twice as long as the average opinion for most of her colleagues. A 10,000-word opinion, however, is still far shorter than the over-25,000-word opinion criticized by Judge Edmondson!
