The Ghost in the Courtroom: When Opinions Are Adopted Verbatim from Prosecutors

by Natasha-Eileen Ulate

Click here for a PDF file of this article

Abstract

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions written by prosecutors should be subject to de novo appellate review. Additionally, states should pass legislation and revise ethics rules to require that judges critically review a proposed opinion, refrain from adopting it verbatim, give the opposing party an opportunity to reply, and write an original legal analysis section.

Change is necessary to ensure that opinions are not just a recitation of a prosecutor’s argument, but a thoughtful product of an impartial judge. Left unchecked, ghostwriting will destroy the value of opinions and undermine the integrity of adjudication.

The Ghost in the Courtroom: When Opinions Are Adopted Verbatim from Prosecutors

by Natasha-Eileen Ulate

Click here for a PDF file of this article

Abstract

Judicial opinions captivate the legal community, serving as a hub for teaching new lawyers and developing the law. These opinions also provide a method for the justice system to communicate with the people it serves—both the parties to the cases and the public. This communication should be well-reasoned and developed from a neutral standpoint. However, this ideal is being seriously threatened by ghostwriting, the practice of allowing a party to write the opinion. This is particularly troubling in criminal cases, where the very lawyers charged with prosecuting defendants are writing the opinions against them.

This Note proposes that opinions written by prosecutors should be subject to de novo appellate review. Additionally, states should pass legislation and revise ethics rules to require that judges critically review a proposed opinion, refrain from adopting it verbatim, give the opposing party an opportunity to reply, and write an original legal analysis section.

Change is necessary to ensure that opinions are not just a recitation of a prosecutor’s argument, but a thoughtful product of an impartial judge. Left unchecked, ghostwriting will destroy the value of opinions and undermine the integrity of adjudication.