Saturday, 27 January 2007

Decorum on Appeal: When Judges Are Under Attack

January 27, 2007

Decorum on Appeal: When Judges Are Under Attack

Howard J. Bashman,

Some judges are crooked. Others are idiots. And some ignore or distort the
facts and applicable law to reach results more to their liking than the
facts and law, honestly portrayed, would allow.

When appealing from a ruling of an incompetent or dishonest trial judge,
appellate lawyers often must wrestle with the extent to which the trial
judge's incompetence or dishonesty should be directly condemned in the
brief. Similarly, when an appellate court judge believes that colleagues
have reached an incorrect result, the appellate judge must decide the extent
to which any separate opinion should condemn the other judges' stupidity or

In my experience, in an appeal that is challenging the substance of a trial
judge's ruling, it is preferable to demonstrate as clearly as possible that
the ruling is wrong rather than to try proving that the trial judge was
dishonest or incompetent.

As appellate judges are well aware, even the smartest and most highly
qualified trial court judges can sometimes reach erroneous results, and thus
a direct assault on a trial court judge's qualifications or motivations is
usually, in the appellate court's eyes, irrelevant to the central issue of
whether the decision should be upheld or overturned. Also, an attack on a
trial court judge's integrity runs the serious risk of offending the
appellate judges -- not typically the best way to convince another person to
agree with the position that one is advocating.

Experienced appellate judges recognize that the intensity of an advocate's
rhetoric often bears an inverse relationship to the strength of that
argument. And no advocate needs to tell an experienced appellate judge which
trial judges are not especially intelligent or are typically prone to
results-oriented jurisprudence; the appellate judges usually know this
better than any lawyer because they're frequently reviewing the work of the
same trial court judges.

Of course, there are some instances when a direct assault on a trial judge's
motives or competency cannot be avoided, such as when that judge's failure
to recuse is at issue or where a writ of mandamus challenging an egregiously
wrong interlocutory ruling is being pursued. But, in the vast majority of
appellate cases, attorneys should avoid condemning the decision maker whose
work is being challenged, and instead focus on demonstrating the errors that
plague the decisions themselves.

The Supreme Court of Utah recently issued a ruling that demonstrates the
risks of ignoring the advice that I am offering here. In a case in which
that court had granted discretionary review to resolve an important but
unsettled issue of Utah law, the court ended up affirming the case as
punishment for attorney misbehavior after the attorneys for the losing
parties in the intermediate appellate court filed briefs that were, in the
words of Utah's highest court, "replete with unfounded accusations impugning
the integrity of the court of appeals panel that heard the cases below."
According to the Utah Supreme Court's opinion, the offending appellate
briefs "include[d] allegations, both direct and indirect, that the panel
intentionally fabricated evidence, intentionally misstated the holding of a
case, and acted with improper motives. Further, petitioners' briefs are
otherwise disrespectful of the judiciary."

Once a lawyer is sanctioned for disrespecting a lower court judge in an
appellate court filing, a common refrain from some commentators is that the
lawyer's offending remarks were no worse than some of the more provocative
dissenting opinions that U.S. Supreme Court Justice Antonin Scalia has
filed. I am not writing to defend the Utah Supreme Court's rejection of an
appeal for one side's bad manners or to examine the extent to which the
First Amendment should protect such attorney speech. That constitutional
question presents a hornet's nest that the U.S. Supreme Court is currently
facing in pondering whether to step into in a case involving controversial
Michigan attorney Geoffrey Fieger. Rather, my point here is simply that
condemning the lower court judge usually detracts from the persuasiveness of
a brief that should instead focus on demonstrating the errors inherent in
the rulings under consideration. And demonstrating that a given ruling is
wrong does not usually require demonstrating that the judge who issued the
ruling was crooked, incompetent or in pursuit of an improper agenda.

Although the manner in which Justice Scalia may have publicly harangued some
of his judicial colleagues is irrelevant to the question of what level of
personal attack attorneys should employ against judges in appellate briefs,
Scalia's behavior is directly relevant to the question of how judges should
behave toward one another. It is not unheard of for appellate judges serving
on the same court to dislike one another and even to question each other's
intelligence and motives. Yet, appellate judges must remind themselves that
their jobs are to apply the law as they understand it -- not to vindicate
personal grudges or launch messy feuds that have little relation to any
particular cases or controversies and that will impede their ability to
reach common ground in deciding cases.

Here again, the most effective appellate judges are those who are capable of
finding common ground when necessary, mindful of the fact that on multijudge
appellate courts, precedent cannot be created unless a majority of judges is
willing to sign on to a particular outcome and set of reasons for reaching
that outcome. And when common ground is incapable of being found, the most
effective appellate judges can write a dissent that exposes all the errors
of reasoning in the majority's outcome without personally attacking those

Appellate judges are called on to decide many matters of great importance,
and particular judges understandably believe that their own views are
superior to the differing views of their colleagues who would decide a given
case some other way. It appears to me, as a close observer of appellate
court rulings, that those appellate judges who are able to deal internally
with whatever personal affront arises from disagreement over cases are, in
the long run, more effective in commanding respect from their colleagues and
assembling majorities than those judges who write dissents that cause
personal offense to colleagues because the dissents question the motives or
qualifications of those in the majority.

It is not always easy as an advocate to refrain from attacking a
particularly wrong trial judge as idiotic or results-oriented, and I imagine
that it is not always easy for an appellate judge to refrain from
questioning colleagues' motives or integrity when they reach a particularly
wrong outcome. But, in both instances, the better course is to focus on the
dispute's merits rather than engaging in personal attacks. In an appellate
brief, an attack on the trial judge is likely to undermine the
persuasiveness of the merits of the argument. And an appellate judge's
attacks on colleagues themselves, rather than on the merits of their
reasoning, are sure to undermine that judge's own ability to effectively
assemble majorities in the future.


Source : (Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached
via e-mail at You can access his appellate Web log at )

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