Here's something about going to law school that may surprise you: no one ever really teaches you how to read a legal opinion. You just start reading them one day, and before you know it, you are using phrases like a fortiori in regular conversations and all your non-law friends hate you for it. The learning curve is steep, and even looking back now, I'm not entirely sure when or how I "learned." You just kind of absorb it as you go along.

Obviously, not everyone is going to have the time to learn how to read opinions just through the act of repetition. But I think it is extremely important for well-informed citizens to understand the basics. I hope once we have finished this series, you will feel a little more equipped to argue about the most recent Supreme Court opinions with even the most know-it-all of all of your acquaintances.

I'll be speaking in broad generalities. Laws vary in every country, and every state in the United States. A lot of these general principles should help guide you in reading most opinions you find yourself interested in reading.

First things first: what the hell is an opinion? An opinion is the written conclusions of the court in support of an order. Orders are not always accompanied by opinions, and orders are not always written. In addition to deciding the matter at hand, an opinion guides both litigants and other courts regarding the proper decision regarding the same or similar set of facts and law.

That guidance is referred to as precedent, which is either binding or persuasive. In order to understand the difference, I'll talk briefly about the structure of the court system.

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In most jurisdictions in the US, there are three levels of courts.* The trial court (in the Federal system, called the District Court) is the lowest court in the system. It may be divided into any number of divisions that deal with specific types of cases (criminal, civil, family) but as far as court structure goes, these are all the same "level" of court. Trial courts cover regions within a state. In my state, for example, the state trial courts usually cover counties. In the federal system, each state is divided into specific districts. Some states, like South Carolina for example, only have one district for the entire state. Others, like Texas, have four. The numbers in the federal districts vary by population and how busy the dockets are.

Next in the chain are Courts of Appeal, sometimes referred to as an intermediate appellate court. In state court, these cover districts within the state (In Florida, there are 5 Districts, and thus 5 District Courts of Appeal). In the federal system, they cover regions (called circuits) of multiple states. There are currently 11 Circuits in the federal system. Finally, there are State Supreme Courts and the Supreme Court of the United States. Generally speaking, the state and the federal systems operate separately (and have jurisdiction over different cases). However, there are types of cases that may be appealed from the state court system to SCOTUS (for example, state death penalty cases are almost always appealed through the state system, and then to SCOTUS, because there are invariably U.S. constitutional issues to be addressed).

Intermediate appellate courts, in the federal system at least, are usually divided into two stages. When you first appeal to an intermediate appellate court, you will typically be heard by a three-judge panel only, who will then issue the opinion. One can then request the decision be reviewed en banc, or by the whole Court. (though notably, in the 9th Circuit, en banc is in front of only half the Court; they have so many judges that they never all sit on a case at once). En banc review is typically discretionary. The final stage of review is the state or federal Supreme Court.

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For the most part, the average citizen will be most interested in reading opinions issued by SCOTUS or the U.S. Courts of Appeal, or perhaps the Supreme Court of their particular state. For that reason, most of my instruction on how to read an opinion will focus on reading appellate opinions, rather than state court orders.

There are two kinds of appeals: mandatory and discretionary. Basically, in some cases you have an absolute right to an appeal, and in other cases, the Court chooses whether or not they will review your case. In very limited circumstances, such as death penalty cases in which a violation of the U.S. Constitution is raised, appeals are mandatory all the way up through SCOTUS; you have an absolute right (limited in some ways now by the Anti-Terrorism and Effective Death Penalty Act) to be heard at the highest level.

In most (and perhaps all, though I have not done a comprehensive review) states and the federal system, you have an absolute right to appeal final orders to the intermediate court (the court of appeals). This means that you can appeal orders that dispose of all of the issues involved in the case (though the definition of "final order" is often open to interpretation). The intermediate appellate court may choose to accept, in accordance with its applicable statutes, an appeal that is interlocutory, or basically, an issue that comes up in the middle of the case but does not necessarily resolve all of the issues in the matter.

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With a few exceptions, Supreme Court appeals are almost entirely discretionary, but this discretion is defined by statute and the constitution, so there are limits to it. Taking any sort of discretionary appeal is done through a writ of certiorari, which is why you always see reports stating that SCOTUS has accepted a cert petition for a particular case prior to the oral argument being heard. To sum up all of this information in a fabulously drawn diagram, see below:

**Note the hair added to only two of the judges, to approximate the number of judicial seats actually held by someone other than old white dudes. We'll get to that later I'm sure.**

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So, finally, at least for this part, I'll discuss the concept of authority. As I stated earlier, prior opinions can either be considered binding or persuasive on other courts. This is pretty simple: if a Court is higher than you and in the same district, its opinions will be binding. If a Court is equal to you, or higher than you but in another district, then it's opinions will be persuasive. How much weight a persuasive opinion is given is pretty much up to the Court, but there are conventions. Typically trial courts will give heavy weight to appellate court opinions in their state, even if a particular district doesn't technically cover their county.

Why does all of this matter, really?

Let's take a recent headline. Recently over at the Daily Beast, I saw this summary:

Beginning Wednesday, the Florida Supreme Court will hear arguments on whether or not gay sex constitutes "intercourse." At the heart of the case is a 1986 state law requiring HIV-positive people to disclose their status. In 2011, a man in Key West was charged with not disclosing that he had the virus when he had sex with another man. However, a circuit court judge dismissed the case as state law defined "sexual intercourse" as between men and women. The state has appealed the case, arguing that it intended to cover all sex acts.

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Everything in that write-up is technically true, but there is more to it. If you read the underlying opinions, what you'll discover is that the trial court actually did not do anything much out of the ordinary; all he did was follow a prior opinion issued by the Second District Court of Appeals. This authority, from a higher court outside his District, was technically persuasive authority. However, it is very common in Florida for trial courts to accept as binding any prior decisions from any court of appeals in the state where their own district has not answered the question. Thus, while unusual sounding, the trial court's decision was actually quite normal. In the appeal from the trial court, State of Florida v. Debaun, 129 So. 3d 1089 (Fla. 3d DCA 2013), the Third District Court of Appeals reversed this decision; they are not bound by the decisions of their sister circuits (though again, they can accept those decisions as persuasive). Because of the conflict between the decisions of the two circuits, the Florida Supreme Court has accepted certorari over the case. The interpretation of whether "sexual intercourse" includes sex between men seems like a silly one, indeed, but the source of the silliness is not from the trial court's opinion in Debaun, but rather, a Second District Court of Appeal opinion from several years ago. In part two of how to dissect an opinion, we'll talk about this case.

*There are also United States Bankruptcy Courts, which govern… bankruptcy! Cases in the Bankruptcy Courts are appealed to either the District Court or the Bankruptcy Appellate Panel, and then up the federal chain. In most state courts, there are also small claims and/or county courts below the civil trial courts, which typically deal with cases of smaller monetary value.

This article has been prepared by Elle Woods & Associates and the Powder Room for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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