The Art of Judicial Opinion Writing

Discussion of some particularly noteworthy decisions, Nasser Al-Aulaqi v. Leon C. Panetta, et al., drew enormous interest and fascination not only in the facts of the case, how relatives can sue government officials, but also the structure of this forty one (41) page opinion.
 
Since 2002, the Afghan judiciary has made much progress, however, the link between courts and the public needs to be further strengthened by training Afghan judges on the skills to write opinions. Currently, judges are not accustomed to or trained in writing or publishing opinions or the final disposition, and there is no formal policy on the standards or guidance of opinion writing or publishing. As a result, Afghanistan Justice Organization with support from the Commonwealth and Foreign Office of the British Embassy in Kabul and in cooperation with the Supreme Court of Afghanistan conducted a two-week pilot training program for fifteen (15) judges from Kabul and Wardak Anti-Corruption Tribunal, and general criminal district and appellate courts in judicial opinion writing.
 
The program focused on the art of judicial opinion writing. The course provided a general overview of the opinion writing function with emphasis on topics such as: opinion writing theory, opinion structure and opinion writing style. Opinion writing theory focused on questions such as whether an opinion should be written, what type of opinion should be written, how opinion decision-making occurs (e.g., majority, concurring, dissenting), and so on. Opinion structure focused on the anatomy of an opinion including standards of review, factual narrative, issue development and the ratio decidedness. Opinion writing style focused on writing techniques: traditional, untraditional and the unusual. The course also provided samples of and briefly reviewed great judicial opinion writers, past and present, including discussion of some particularly noteworthy decisions, Nasser Al-Aulaqi v. Leon C. Panetta, et al. which drew enormous interest not only in the actual case, but how this forty one (41) page opinion was written.
 
AJO conducted an impact evaluation of the pilot program three months after, and learned that 60% of the judges who participated are applying the skills they learned. Only 20% of the judges said that they have publically shared written opinions only when requested by interested parties or provided for educational purposes to the participants of the judicial stage. Judge Khairullah Bhaige of the Kabul Anti-Corruption Tribunal said he now writes his opinions if necessary and what to include in it. However, the most important part he said is that “I take my time to formulate analyses and arguments so that they are not contradictory.” He also said that a long-term training is needed for all in-service judges on opinion writing as it is one of the most important functions of the judiciary to connect with the citizenry.