Law360 (March 14, 2025, 3:52 PM EDT) --

Judge Fred Biery

As a judge, writing opinions can sometimes feel like novocaine for the brain.

I'm certainly not the first to observe this. Indeed, back in the late 1980s, I served as a judge in the Texas Fourth Court of Appeals. While discussing a case before us, then-Chief Justice Carlos Cadena opined, "It's tiring to use the same legal words over and over."[1]

One can add that judicial opinions are also mind-numbing for the reader, though a nonpharmaceutical cure for insomnia. Or, as the young people say, "BORING!"

All of which is confirmed by journalist Rick Casey, writing about yours truly in the San Antonio Express-News in 2013: "Having covered many trials in my career, I am sensitive to the uncommonly boring nature of being a judge," so "[c]ut the judge some slack on double entendres."[2]

With that inspiration, I choose, in some instances, to go against the grain of legal writing tradition to maintain some degree of sanity in the Sisyphean task of judicial writing.[3]

It usually takes four to six laborious drafts before the written round rock stops rolling back down the judicial hill. On completion, a biblical quote comes to mind: "It is finished."[4] Or, in modern texting vernacular, "i b dun."

The motivation for writing creatively is shaped by my childhood — the story of a fortunate youngster who descended from an orphan, central Texas cotton-pickers, a blacksmith, firefighters and Swiss immigrant tenant farmers.

I was educated in public schools, and my teachers were brilliant women who today would be CEOs, journalists, lawyers and doctors. They instilled in me a love of learning, literature and history, which continues to serve me well.

My paternal and maternal relatives had little more than a basic education, but possessed incredible memories for detail, passed down through the genetic tree.

And nurturing by wonderful college and law school professors provided the ability to craft an occasional creative opinion.

These early experiences, influences and sources of education conferred a few key lessons that lend themselves well to writing colorful judicial opinions. Those include the following:

1. Be true to the facts and the law, even if it means ruling against political friends.[5]

2. Tell a human story.[6]

3. Read and listen widely and deeply to literature, commentators, authors, humorists, arts, culture and science.

4. Use the tools of imagination, creativity, curiosity and, most importantly, the "computer" sitting on one's shoulders — i.e., your brain.[7]

5. Be original, e.g., "Never F-I-B to the FBI"; the causes of indictments are "GAS — greed, addiction and sex."[8] I use these acronyms in public speaking, especially in sentencing proceedings.

For example, during a sentencing colloquy last year with a prominent San Antonio businessman and civic leader, Kenneth "El Rey Feo" Flores — who pled guilty to federal bid-rigging, in a scheme involving a sexual relationship with a government employee and his self-admitted addiction to public and private acclaim — I said, "Sir, there are three reasons people like you end up in federal court: greed, addiction or sex" — GAS. "What got you here?" He replied, "[A]ll three."[9]

6. In addition to traditional legalese, alliteration, double entendre, analogy, cadence, aphorism, malapropism, oxymoron, simile and euphemism can add spice to an otherwise bland bowl of legal porridge, whether in opinions or brief-writing.[10]

7. Brevity can be powerful. Consider John 11:35 — "Jesus wept." And, "For sale: Baby shoes, never worn," — attributed and misattributed to Ernest Hemingway.

But with the advent of text and email communication, we have made a secular Faustian bargain to value efficiency at the expense of the lyrical beauty of the English language.[11]

Nevertheless, brevity can be useful in opinion and brief-writing. For both, prepare an outline of the points and address each one once, keeping in mind Henry David Thoreau's notion to "simplify, simplify, simplify!"[12] and the modern example of DeWitt and Lila Acheson Wallace — the enormously successful creators of Reader's Digest — and their philanthropy through the Wallace Foundation.

Compare and Contrast

Let's look at some examples of these pointers in action.

Compare "The defendant intentionally committed murder," with "Defendant acted with malice aforethought to accomplish his criminal purposes, his evil heart fatally bent on mischief," a line from my 2013 opinion in U.S. v. Gemase Lee Simmons.[13]

Likewise, compare this with, "[M]alice aforethought ... is a condition of the mind that shows a heart regardless of social duty and fatally bent on mischief," as articulated in the Texas Court of Criminal Appeals' 1883 decision in Haynes v. State.[14]

These turns of phrase employ some of the strategies discussed above — language leading the reader to imagine a human story of passion and curiosity about the underlying facts.

In the Declaration of Independence, Thomas Jefferson could have written, "We hereby declare our independence from a mean king." Instead, he told the story of a people trampled by tyranny:


In the same vein, President Abraham Lincoln could have said, "We gather to honor those who fought and died here." Instead, in his 1863 "Gettysburg Address," he creatively said, "We cannot consecrate, we cannot hallow this ground. The brave men, living and dead, who struggled here have consecrated it far above our poor power to add or detract."

And Lincoln's use of alliteration and metaphor in "mystic chords of memory" and "better angels of our nature" transcends the boundaries of time.

Also consider the generic statement, "We have a duty to serve on juries and go to the polls to vote." Compare this to the cadence of, "[t]hose who gave their lives so we could, would wonder why they did if we don't," as articulated in my 2022 opinion in Texas Democratic Party v. Scott.[15]

These examples are more poetically readable, tell a story, speak to the soul and uplift the human spirit. They can also evoke "eye moisture," "throat lumps" and "goosebumps."

Shorter sentences can do the same, packing a powerful punch. Consider: "These are the times that try men's souls," as Thomas Paine wrote.[16] Or Patrick Henry's famous line, "Give me liberty or give me death!"[17] And journalist Herbert Agar's line, "The truth that makes men free is for the most part the truth which men prefer not to hear."[18]

My personal powerfully concise judicial writing favorites are "Granted," "Denied," and "It is so Ordered."

Conclusion

In addition to striving for readability, I concur with the writer and cartoonist Jules Feiffer's assertion that "[m]y goal is to make people think, to make them feel and, along the way, to make them smile, if not laugh."[19]

Moreover, for fellow lawyers and judges, bits of medicinal comic relief and creativity assuage the pain of observing the human condition. If laughter is employed by Pope Francis, surely it is acceptable for us.[20]

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Fred Biery is a U.S. district judge in the U.S. District Court for the Western District of Texas.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Prior to his judicial career, Chief Justice Cadena, standing five foot, two inches tall, was a legal giant in civil rights, a mentor and hero to me and was an outstanding and successful civil rights lawyer. Hernandez v. Texas , 160 Tex. Crim. 72, 251 S.W.2d 531 (Tex. Crim. App. 1952), rev'd 347 U.S. 475 (1954) (ending practice of systematically excluding Hispanics from jury service in Texas) (Mr. Hernandez was represented by Carlos C. Cadena & Gus C. Garcia); Harvey v. Morgan , 272 S.W.2d 621 (Tex. Civ. App. Austin 1954, writ ref'd n.r.e.) (desegregating professional boxing in Texas).

[2] Rick Casey, Cut the Judge Some Slack on Double-Entendres, San Antonio Express- News, May 4, 2013 (commenting on 35 Bar & Grille, LLC v. City of San Antonio , 943 F. Supp. 2d 706 (W.D. Tex. 2013)).

[3] National Judicial College, Reno, Nevada, circa 1982: In attendance with a group of new judges, we were taught by Maryland Court of Special Appeals Judge Charles E. Moylan, Jr., who said, "You can disagree with my conclusion, but don't mess with my style."

[4] John 19:28-30.

[5] Texas Democratic Party v. Scott , 617 F. Supp. 3d 598 (W.D. Tex. 2022); Dutmer v. City of San Antonio , 937 F. Supp. 587 (W.D. Tex. 1996).

[6] IAS Services Grp. v. Jim Buckley & Assocs. , Civil Action No. SA-14-CV-180-FB, 2024 WL 3565008 (W.D. Tex. July 23, 2024).

[7] Center for Biological Diversity v. United States Fish & Wildlife Serv. , 202 F. Supp. 2d 594 (W.D. Tex. 2002) (with assistance from Martin Niemoller)); United States v. Bart , 973 F. Supp. 691 (W.D. Tex. 1997); Shacklett v. The Paul Revere Life Ins. Co., Civil Action No. SA-95-CA-1168-FB (not published) (available at www.txwd.uscourts.gov under Opinions/Notable Cases tab) (with help from "The Midnight Ride of Paul Revere" by Henry Wadsworth Longfellow).

[8] See also "Newtralized" and "vomitously."  Schultz v. Medina Valley ISD , Civil Action No. SA-11-CA-422-FB, Opinion and Order of the Court Concerning Joint Motion to Approve Settlement and Enter Consent Decree at pages 3, 14 (available at www.txwd.uscourts.gov under Opinions/Notable Cases tab).

[9] https://www.expressnews.com/news/article/flores-bid-rigging-scandal-19746682.php.

[10] See, e.g., 35 Bar & Grille, LLC v. City of San Antonio, 943 F. Supp. 2d 706, 712 (W.D. Tex. 2013) ("While the Court finds these businesses to be nefarious magnets of mischief, . . . the case law does not require causation between nudity and naughtiness."); Aquifer Guardians in Urb. Areas v. Fed. Highway Admin. , 779 F. Supp. 2d 542, 550 (W.D. Tex. 2011) ("The status quo of idling internal combustion engines on the subject roadways spews large quantities of carbon monoxide for Mother Earth to breathe, not a nice thing to do to one's mother, and causes automobile droppings onto and into the Edwards which the Court calls Petro Poop."); Casarez v. Val Verde Cnty , 957 F. Supp. 847, 849 (W.D. Tex. 1997) ("[T]he question is: Where legally may mobile minions of military members mark ballots for local offices?"); Dutmer v. City of San Antonio, 937 F. Supp. 587, 595 (W.D.Tex.1996) ("Those who believe the [term limits] Ordinance a malignancy on the body politic may have to await the appearance of symptoms to attempt persuasion of a majority to perform corrective surgery at the ballot box.").

[11] Adanandus v. Johnson , 947f F. Supp. 1021, 1030 (W.D. Tex. 1996) ("In a nation whose landscape is dotted with synagogues and churches, the entreaties of "thou shalt not kill" and "forgive your enemies" are challenged by retribution and revenge, understandable responses to violent crime. The divergence between what is said on the Sabbath and what is done on election day has given secular America its macabre politics of death, collectively imposed upon the predators among us through the might of the State. . . .").    

[12] "Walden," Henry David Thoreau, 1854.

[13] United States v. Gemase Lee Simmons, Criminal Action No. SA-12-CR-108-FB (not published) (available at https://www.txwd.uscourts.gov/wp-content/uploads/2024/06/The-Verdict-And-Opinion-Of-The-Court.pdf).

[14] Haynes v. State , 14 Tex. Ct. App. 330, 331 (1883) (internal quotation omitted). 

[15] Texas Democratic Party v. Scott, 617 F. Supp. 3d 598, 618 (W.D. Tex. 2022).

[16] Thomas Paine, "The Crisis," December 23, 1776.

[17] Patrick Henry, March 23, 1775.

[18] Herbert Agar, journalist and historian, 1897-1980.

[19] Jules Feiffer (1929-2025).

[20] "A sense of humor lifts you up. It shows your life is short and to take things in the spirit of a redeemer."  Pope Francis.

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