(Reuters) - My job is a lot more fun when I'm covering an engagingly written judicial opinion. I'd rather spend time reading the work of a judge who is a good storyteller, who brings legal issues to life with stylish prose, than an opinion without a strong point of view.

And that makes me part of a big problem, according to law professor Nina Varsava of the University of Wisconsin Law School.

In "Professional Irresponsibility and Judicial Opinions," a newly published draft of an article that will appear later this year in the Houston Law Review, Varsava argues that by celebrating and encouraging judges who employ a "colorful and aesthetically pleasing judicial writing style," our current legal culture is actually promoting opinions that "undermine the integrity of the judicial role and compromise the legitimacy of opinions, courts and the adjudicative process."

Varsava argues that judges are too often concerned with telling a good story, expressing their literary style or even attempting to persuade non-legal readers that they've reached the right conclusion. Those are all writing skills that make judges celebrities whose opinions are taught in law schools and cited in other judges' decisions.

But those goals, she contends, can interfere with judges' intrinsic duties: to be and appear impartial, to show respect for lawyers and litigants and to be clear and candid in their legal reasoning. The true purpose of a judicial opinion, Varsava contends, is not evocative prose. It's the articulation of "rigorous, impartial legal reasoning" for the benefit of lawyers and other judges who need to understand the law.

"Part of my aim," Varsava told me in an interview on Friday, "is to make people think about what we mean by a well-written opinion."

For me, the paper's most provocative points are that judges should be wary of trying to craft compelling narratives, "since litigants and the disputes in which they are involved are unlikely to fit neatly into stock character types and plot lines," and that judges who try to be entertaining may end up disrespecting the parties whose cases they are deciding. Varsava mentioned several examples, but I'll focus on her discussion of a pair of opinions from two U.S. Supreme Court justices, Neil Gorsuch and Elena Kagan.

Before Gorsuch was named to the Supreme Court, he was a judge on the 10th U.S. Circuit Court of Appeals, where he became known as a stylish writer. One of the opinions frequently cited in support of that proposition was Western World Insurance v. Markel American Insurance (677 F.3d 1266), a dispute between insurance companies over coverage for a suit by a plaintiff injured in a fall at a haunted house amusement attraction.

In the beginning of the opinion, Gorsuch colorfully told the tale of the plaintiff in the case that sparked the insurance coverage litigation, evoking the spooky story of a man groping through the dark before falling down an elevator shaft. When Gorsuch was nominated to the Supreme Court, news organizations mentioned the decision as an example of his ability to draw readers in.

But Varsava – who told me that one of the reasons she became interested in this topic was frustration with coverage of Gorsuch's opinions – points out that Gorsuch's evocative details about the plaintiff's accident had nothing to do with the actual legal questions before the 10th Circuit. By dedicating fully 10% of his opinion to entirely extraneous narrative, Varsava said, the judge "distracts from the live legal issues, compromising the opinion's guidance value."

Kagan's opinion in Florida v. Harris (568 U.S. 237), meanwhile, is often mentioned as an example of her colloquial style, humor and accessibility. The case, Varsava recounts, involved the admissibility of evidence obtained after the defendant's truck was sniffed by a police dog trained to detect narcotics. The Supreme Court ruled that the search was constitutional, a holding that Kagan summarized with the memorable quip, "The sniff was up to snuff."

But for the defendant, Varsava pointed out, the case was no laughing matter: He was convicted and sentenced to two years in prison based on the evidence from the dog's sniff. Kagan's clever turn of phrase, she said, "seems to make light of the case."

That's a not-infrequent failing for judges who put a premium on stylish writing, Varsava pointed out. Their opinions, she posited, "are more likely to be unfair (or) disrespectful." Litigants aren't characters to serve a judge's storytelling instincts, Varsava said, but that's how they're treated in some opinions.

So what's to be done to quell judicial writing that ends up putting style over substance? Varsava suggests several possible responses, from judicial codes of conduct that emphasize judges' duties of impartiality and propriety in their writing to state or federal legislation that, for instance, bars courts from specifying the authors of majority opinions.

Varsava acknowledged to me that formal restrictions are extremely unlikely, especially because of separation of powers concerns about Congress telling federal judges how to do their job. Nor are there cultural incentives at the moment for judges to downplay their personal writing style in favor of a more institutional voice, since ambitious judges make their reputations by standing out.

Instead, if change is to come, she said, it will likely be from within judiciaries. Perhaps as courts become more diverse, she suggested in the draft paper, courts' "institutional style itself will be heavily informed by the perspectives of those who have been historically marginalized in the legal profession and underrepresented on courts."

Some of Varsava's arguments failed to persuade me. I'm not convinced there's a downside to opinions written to inform and persuade the general public on divisive legal issues. And I'm always going to be a sucker for an opinion that tells a good story.

But her paper accomplished its objective: She did make me think about the costs of stylish prose.

(Reporting by Alison Frankel)

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