Stating the Facts in Judicial Opinions
posted by Lawrence Cunningham
Modern judges are responsible for reciting the facts of cases in their opinions. But before the 20th century, it was a frequent practice for the facts to be written by someone else, usually a court official (called an auditor or reporter) but sometimes by one of the advocates. [In contracts, see, e.g.,Lawrence v. Fox (NY 1859); Boothe v. Fitzpatrick (Vermont 1864); Cotnam v. Wisdom (Ark. 1907)].
The result sometimes created conflicts between what the judge appeared to assume the facts to be and the way they had been stated. That may have been a factor that led to abandoning the old-fashioned practice and having judges write their own facts. Would judges have preferred to avoid writing the facts or favor laying them out for themselves?
I wonder what was the reason for the old-fashioned approach. What were the other reasons for its displacement by the modern approach? Has it made a particularly important difference in many cases? When one sees such ancient opinions in casebooks for first year classes, what should students be told to make of that old practice as a matter of legal method? Informed insights are eagerly sought.