Attracting undue scrutiny on appeal: an appellate judge's perspective.

• Author: Davidson, Marshall L.

Trial judges have difficult jobs. They must often make on-the-spot decisions, such as ruling on an objection at trial, with little or no time for reflection. They must grapple with zealous lawyers while navigating a fine line between ensuring due process and fairness to self-represented litigants and maintaining neutrality and fairness to the opposing side. As first-line decision makers, they must sometimes resolve difficult issues in a legal vacuum, as with an issue of first impression. Little about the trial judge's role in the administration of justice is easy.

And, of course, nearly every decision a trial judge makes is subject to challenge on appeal by any party who believes the decision is wrong. After twenty-five years of reviewing thousands of trial and intermediate appellate court decisions for error in all types of cases, it is apparent to me there are some common ways trial judges attract greater scrutiny on appeal than they otherwise might. This essay addresses some of the more common ones.

1. USING HUMOR IMPROPERLY

   "Humor in the judicial system is not funny." (1) After attending national conferences at which judicial writing is featured as a prominent topic, I am always struck by the division among judges, both state and federal, over whether humor has an appropriate place in a court's written decision. Some judges believe, and strenuously assert, that judicial writing is unnecessarily dull, uninspiring, and unimaginative. Consequently, some judges see nothing wrong with injecting a bit of levity into an otherwise cold, impersonal, and technical way of conducting business. For example, in a case involving the issue of whether the defendant, a married man, should be placed on probation for attempting to convince a minor to check into a hotel with him, the court observed:

   This defendant has in the eyes of the law done wrong, but not enough in this instance to be jailed, and the least the trial judge can do is to relieve him of his temporary sentence, and remember that he is forever and eternally on probation to his wife, who will be his wife, his warden and parole officer all wrapped up in one. What a sad fate for any poor mortal to face. (2) While it is difficult to know what, if any, reaction the defendant, his wife, the prosecutor, or anyone else associated with this case had upon reading the court's decision, it is not farfetched to imagine that such commentary in the opinion may have been viewed as offensive or even hurtful. Perhaps worse, it may have been viewed as diminishing the seriousness of the crime of which the defendant was convicted.

   But some judges are skilled enough to inject humor in such a way to avoid giving offense. For instance, in a case about fertilizer and tax deductions, a federal court of appeals wrote that

   "[t]o every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; a time to purchase fertilizer, and a time to take a deduction for that which is purchased." (3) In another case involving the tort principle of attractive nuisance, the court declared that

   [w]hile we acknowledge the picturesque beauty of the rolling hills and majestic mountains of Tennessee and agree that they are attractive, the fortunate fact that God has strewn His splendor with such a lavish hand and blessed our state with great beauty, and has made it a veritable playground, hardly affords a reason to classify any normal topographical feature as an attractive nuisance. (4) It is difficult to imagine a reasonable reader taking offense at either of these cleverly written observations.

   There is, of course, a self-evident danger in attempting to weave humor into judicial writing--the parties, and perhaps a reviewing court, may feel that the judge did not take the case seriously. Consequently, some legal scholars counsel against using humor in judicial writing, given that "[t]he litigant has vital interests at stake... and the robed buffoon who makes merry at his expense should be choked with his own wig." (5) Other commentators assert that "[l]itigants consciously place the court in a position of power to resolve controversies; they expect to be treated fairly and with dignity," and then point out that "[h]umor can defy both expectations." (6)

   My own view is that attempts at being cute or humorous in a written decision should be avoided for fear of being perceived as flippant, uncaring, or unprofessional by the parties, other courts (in particular, an appellate court charged with reviewing the decision), or the public in general. As stated by the Kansas Supreme Court, "[j]udges simply should not 'wisecrack' at the expense of anyone connected with a judicial proceeding," for "[w]hen judges do this... respect for the administration of justice suffers." (7) The risk of giving the parties the impression that the judge is making light of their situation is just not worth it.

2. DISCOUNTING THE LAW

   Public confidence in the performance and impartiality of the courts is maintained only when judges rigorously follow the law. The basic idea, of course, is that judges should interpret statutes and other laws as they find them and apply those laws faithfully according to their plain meaning. The discretion to establish public policy is generally committed to legislative bodies, not to the courts. Thus, to avoid reading their own beliefs and values into the law, judges are expected to apply the law as written. Put another way, it is not the province of the judge to second-guess the wisdom of legislation and decide cases based on what the judge believes the law should be. (8) No reasonable jurist would seriously contend otherwise.

   Similarly, most judges would readily agree that decisional inconsistency and unpredictability represent the antithesis of an efficient and effective system of resolving disputes. Yet, court decisions that fail to faithfully follow the law can create just the sort of inconsistency and unpredictability that can undermine the efficiency and effectiveness of our judicial system. The result is diminished public confidence in the integrity of the courts.

   Accordingly, few things attract the attention of a reviewing court more quickly than a lower court's failure to correctly identify and apply settled legal principles. Reviewing courts will not fully trust the work of a court with a demonstrated pattern of failing to follow the law. Or to put it differently, trial judges undermine their credibility with appellate courts by repeatedly misstating the law--albeit inadvertently--or by not adhering to relevant legal standards. Once a judicial reputation is diminished in this...