How Closely Can Judges’ Opinions Mirror Filings?
posted by Frank Pasquale
That was the question at issue in the remand of Bright v. Westmoreland Cty., 341 F.Supp.2d 525, where the Third Circuit had suggested that the district judge’s opinion was a little too close to the defendant’s proposed order (well, actually, almost a verbatim copy). Here’s the judge’s response:
[T]he starting point of numerous documents, eventually signed by this Court, and by other district court judges in this and other districts, may initially be counsel’s work product. Why are district courts throughout this country receiving attorney work product on “computer disk/cd,” if they are not to be used as a starting point? It never occurred to me at that time that anyone would view as improper the practice of an attorney’s work product serving as a starting point for a Memorandum Opinion from this Court. . . .
[Moreover,] In addition to “two substantive changes,” I made over sixty (60) “markings,” including correction of citation form, verb changes, tense changes, spelling corrections, etc. My training as a law clerk for a well-respected Judge of the United States Court of Appeals for the Third Circuit and as a member of the Virginia Law Review, as well as over thirty (30) years of trial practice, taught me that such matters were important.
The conflict reminds me of the recent controversy over a judicial nominee accused of “appropriat[ing] without attribution . . . substantial portions” of an article. Both situations suggest that judicial and scholarly independence require a commitment to “make it new;” perhaps only stylistically for the judge, but substantively for the scholar.
July 19, 2008 at 3:19 pm
Posted in: Law Practice
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Responses (15)
michigander - July 19, 2008 at 4:46 pm
Sometimes it’s expressly invited, as when the court asks each side for proposed findings of fact and conclusions of law.
ex-clerk - July 19, 2008 at 5:05 pm
This is an interesting post. If a judge copies a party’s brief verbatim into an order, editing only for grammar and citations, there’s no evidence that the judge used his independent judgment to decide the case. Perhaps he did, and perhaps the party whose brief was copied was absolutely correct, but there’s no evidence.
For the sake of public confidence in the system, it might be good practice for judges to either put things in their own words or to simply say “I am fully persuaded by the arguments put forth by Party X on the issue of Y, and therefore rule in favor of Party X on that issue.”
Parties’ briefs are often tendentious, and it should be the rare circumstance where the brief is so correct, its presentation is so neutral, and the issue is so important that the brief gets copied verbatim into an opinion.
This question struck me as odd:
Why are district courts throughout this country receiving attorney work product on “computer disk/cd,” if they are not to be used as a starting point?
If I understand the question correctly, I can think of 5 answers:
1. For ease of making printable copies in chambers if necessary;
2. For reducing paper waste if clerks and judges can read stuff on a screen
3. Searchable text makes it easier for the judge and clerks to do their jobs. If there are 2000 pages of exhibits and something that seemed innocuous when someone glanced at it suddenly seems relevant later, that can run a search instead of flipping through the pages for “that reference to the FDA in that e-mail.”
4. Reduces cost of submitting diagrams or photos in color.
5. Electronic submissions make it possible for the judge’s chambers to maintain an electronic file for the case instead of loading up a file cabinet.
Chris Bell - July 19, 2008 at 5:30 pm
I worked for a while in a suburban state court practice. It was common in small cases to submit entire orders that laid out exactly how you wanted the judge to rule. If he agreed with you, the judge would simply sign your order.
In that case, there was nothing new other than the judge’s signature. This practice wasn’t used for bench trials or anything, but I saw nothing wrong with it. The judge is not an “author” the judge is a “decider”. The opinion is just an explanation of the reasons for the decision. If one party submits something that says what needs to be said, I see no reason why the judge can’t just repeat it.
ex-clerk - July 19, 2008 at 6:24 pm
Chris Bell is right, but I doubt that anyone (the Third Circuit included) has objected to the common practice of judges signing proposed orders or proposed findings of fact and conclusions of law and that sort of thing.
…though I suppose that raises the question of whether what happened here is meaningfully different from that.
Larry Sheldon - July 19, 2008 at 6:43 pm
IANAL
What is the purpose of the filings of proposed orders?
I always assumed that the filers hoped their case was so solid that the judge would just sign in the blank provided…..
Howard Wasserman - July 20, 2008 at 2:18 pm
This is all at the heart of the very idea of an adversary system? The parties put forward their best legal and factual arguments and the judge decides (based on her analysis of the case and the competing views) which position is correct and which to adopt. Chris Bell then is correct–if the judge decides that one side is right, why must she rewrite and restate everything anew?
A.J. Sutter - July 20, 2008 at 10:28 pm
Howard’s argument strikes me as being too narrow. Judicial decisions also have an expressive or symbolic power, which, it seems plausible to me, is a function of the level of court. It’s one thing to sign in the blank provided on an order in a typical divorce case. But here’s what this case was about, from the Third Circuit opinion:
“John Bright appeals the dismissal of his complaint. Bright’s claims arose when Charles Koschalk murdered one of Bright’s daughters, Annette. At the time of the murder, Koschalk was on probation after pleading guilty to corrupting the morals of Annette Bright’s sister. The District Court dismissed all of Bright’s claims.
***
“Importantly, the District Court did not substantively alter the section in the proposed opinion that dismissed Bright’s state law claims based on the Pennsylvania Political Subdivisions Tort Claims Act (“P.S.T.C.A.”). 42 Pa. C.S. § 8541 et seq. This is significant because nowhere in appellees’ motions to dismiss do they argue that Bright’s state law claims are barred under the P.S.T.C.A. The District Court, however, adopted this section of the appellees’ proposed opinion without any real modification or explanation, again excepting minor stylistic changes.”
I think ex-clerk’s point about public confidence in the system is very apt here, even assuming that the problem here was only one of expressive power.
Jennifer Hendricks - July 21, 2008 at 12:15 am
An anecdotal caution for prevailing lawyers: I once had a bench trial in which the trial judge ruled for the other side and explained his thinking for about 20 minutes from the bench. Then he asked my opposing counsel to draft proposed findings and conclusions. The judge’s oral explanation was very fact-based and would have been difficult to attack on appeal. But the proposed order from the other side was based on the same aggressive legal theory they had pushed in their briefs. The judge signed it. We won on appeal.
Howard Wasserman - July 21, 2008 at 8:25 am
The expressive/symbolic component means the judge must explain herself to the parties and show that she has thought about the issues and legal and factual arguments that she adopts. As long as there is an indication of thoughtful consideration of the arguments that she decides to adopt, I do not think the expressive element requires that the judge recreate the rhetorical wheel in the case. Certainly this is true at the district-court level.
The problem in *Bright* (and in the bench trial that Jennifer mentions) was sloppiness on the part of the parties in preparing their proposed orders (putting in things not argued in the briefs or trying to be too argumentatve) and on the part of the judges in signing them.
A.J. Sutter - July 21, 2008 at 12:07 pm
Howard: I admit that I’m neither a litgator nor a former judicial clerk. But first, accepting your argument for the moment: if the judge simply signs a non-sloppy order that was prepared by a party, how does that indicate that the judge has given thoughtful consideration of the arguments she has adopted?
Second, you seem to be evaluating the expressive/symbolic component from the judge’s POV. But shouldn’t the expression and symbolism be evaluated from the POV of the receivers of the communication, who include not only the parties but also the society at large?
JP - July 21, 2008 at 12:42 pm
A.J.: “[S]ociety at large” will never see the vast majority of trial orders. Signing a [non-sloppy] proposed order is an improvement over the most likely alternative: a one-page order stating that the Judge has considered the briefing and finds good cause to grant/deny the Motion.
To my knowledge, there is no requirement that a Judge show evidence of “thoughtful consideration” before making a ruling.
Howard Wasserman - July 21, 2008 at 3:01 pm
Seversl responses to A.J.’s comment:
First (echoing what JP said), we never know for sure that the judge has given “thoughtful consideration” to the arguments raised. Even if she writes an entire opinion from scratch, that does not tell us anything about how thoughtful the opinion was or whether it was thrown together. Ultimately, all we have is faith that judges take their obligations seriously. But how the Judge writes her opinion and order does not give us much information on that fact.
Second, I do not see why the expressive/symbolic element demands an opinion written entirely from scratch. A well-written proposed order, signed and adopted by the Judge, is just as expressive and just as symbolic of the judge having considered the issues and reached a decision, at if you accept my Point # 1. Certainly the parties understand (or should understand) what that adopted opinion reflects.
Third, as for the public, I am not sure how central judicial explanation is to the public. And I am not sure how much the public understands about the judicial process or the adversary system or about how opinions and ordered are written. So I doubt the public bases its faith on the writing process.
A.J. Sutter - July 21, 2008 at 8:11 pm
JP: Thanks for your comment. In the Bright case, the issue wasn’t just an order, but an opinion as well. As the Third Circuit said:
“Judicial opinions are the core workproduct of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.”
Howard, the words quoted above are relevant to your comments as well. You are right that it’s hard to quantify thoughtfulness. And the signing of a party’s proposed order without revision may have a symbolic meaning, at least for the parties. But that symbolic meaning may not always be a good one, as in Bright. I disagree that the *only* problem was the incorporation of a bad argument, though that indeed was what made the judge’s lack of thought visible. It also had the potential to communicate (and, correctly or not, did communicate to me) a certain callousness in the circumstances, and maybe an attitude that the government was indifferent about crushing an individual after (allegedly) negligently contributing to the horrible death of his daughter.
The point about symbolic meaning is that the *appearance* of being thoughtful is as important as actually being so. Even if a judge is thoughtful in adopting a party’s order, he or she should be concerned about the perception of his or her actions. Some original writing, or discussing of the pros and cons helps to create this impression. (Yes, it’s perhaps possible to appear to be thoughtful without actually being so. That doesn’t justify neglecting either thoughtfulness or the appearance of same.)
As I mentioned earlier, I allow that this perception may be more or less important depending on the type of court, case and order. But when court opinions are published, the public becomes a consumer of judicial writing. The public may be ignorant of the workings of the adversarial system, but whether or not it perceives the courts to be fair is a matter of some importance for our democracy. (See the history of the French Revolution for a case in point; court opinions have limited precedential value in France as a result of a distrust of judges.) The judicial system is not merely a private system for the benefit of parties and their lawyers. The public has a stake in it. I, qua citizen, am troubled by the behavior of the distict court judge in Bright, and not just because the prevailing counsel was too aggressive. The fact that as a non-litigator I might not have as perfect an understanding of the court system as you or others tends rather to support my point about symbolic meaning than otherwise.
Frank - July 21, 2008 at 8:20 pm
I like AJ’s points in that last comment–they remind me of Owen Fiss’s article Against Settlement, which emphasized the public functions of adjudication:
“Someone like Bok sees adjudication in essentially private terms: The purpose of lawsuits and the civil courts is to resolve disputes, and the amount of litigation we encounter is evidence of the needlessly combative and quarrelsome character of Americans. Or as Bok put it, using a more diplomatic idiom: “At bottom, ours is a society built on individualism, competition, and success.””
“I, on the other hand, see adjudication in more public terms: Civil litigation is an institutional arrangement for using state power to bring a recalcitrant reality closer to our chosen ideals. We turn to the courts because we need to, not because of some quirk in our personalities. We train our students in the tougher arts so that they may help secure all that the law promises, not because we want them to become gladiators or because we take a special pleasure in combat.”
Gary L. Zerman - July 25, 2008 at 2:16 pm
For an excellent, superb tutorial on this topic, see the Memorandum Opinion by USDC Judge GRADY (Northern District, Illinois, E.D.) in the case of In re Wisconson Steel Corp., 48 B.R. 753 (D.C. 1985).
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