“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.”

“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.

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.

To my knowledge, there is no requirement that a Judge show evidence of “thoughtful consideration” before making a ruling.

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?

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.

“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.

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…..

…though I suppose that raises the question of whether what happened here is meaningfully different from that.

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.

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.