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.
March 22, 2013 at 2:59 pm
Posted in: Jurisprudence
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Responses (4)
Bobby - March 22, 2013 at 3:22 pm
The court official replaced the earlier practice of the parties stating the facts in their respective arguments. This can be seen in the opinions of the Supreme Court which at first have no statement and extensive reprints of arguments of council and then after a time these counsel portions are trimmed and statements of the case by court officials appears. With this sequence of events judges were not in the habit of writing extensive factual summaries because it was assumed the reader would have read the arguments of counsel. When it was decided that the counsel arguments weren’t worth reprinting in full, the judges were not immediately ready to fill in the gaps. So court officials stepped in to provide concise summaries of not only the facts but also the arguments of counsel that were trimmed and excised. After the court official’s statements progressed to the point of being able to concisely describe the cases, judges finally took on the job.
Joe - March 22, 2013 at 3:42 pm
That sounds like a good summary. Might it had something to do with judges thinking their job was purely deciding the law, so stating the facts would not be their bailiwick, or at least, have something to do with it? As noted, the judges’ understanding of the facts affect their judgment on the law.
bill reynolds - March 23, 2013 at 4:12 pm
Having the judges atate the facts was a salutary change. Anyone who has written a brief knows that writing the facts helps you think about the case in a different way. That is one reason why the practice in the federal circuits of having central staff write over 80% of the opinions is so bad: The judges never think through the case the wasy they would have to if they were to write the Statement of Facts
Shag from Brookline - March 24, 2013 at 9:32 am
Sandy Levinson and Jack Balkin’s “What are the Facts of Marbury v. Madison?” in 20 Constitutional Commentary 255 (No. 2, 2003) identifies a lot of “facts” not included in CJ Marshall’s opinion for the Court that seem relevant, including the role of Marshall in Adams’ Administration before his appointment to the Court. (This issue of CC is devoted to “Marbury at 200: A Bicentennial Celebration of Marbury v. Madison” with many interesting articles on this classic early decision of the Court.) Query: had Marshall included his role in the “facts,” might he have been compelled to withdraw?
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