"Honor the craft": personal reflections on the judicial legacy of the Honorable Matthew J. Jasen.

• Author: Hutter, Michael J.
• Position: New York Court of Appeals judge - Testimonial

In a letter to John Adams, written in 1813, Thomas Jefferson commented: "[T]here is a natural aristocracy among men. The grounds of this are virtue and talents." (1) "The natural aristocracy," he continued, "I consider as the most precious gift of nature for the instruction, the trusts, and government of society." (2) Upon a consideration of the opinions of Judge Matthew J. Jasen, it cannot be doubted that Jefferson had in mind when writing that letter, a person such as Judge Jasen.

Judge Jasen served as an Associate Judge of the New York Court of Appeals from 1968 to the end of 1985, when he reached the mandatory retirement age of seventy. During the eighteen years he served the Court of Appeals as an Associate Judge, he authored over 800 decisions, spanning forty-seven volumes of the official New York reports, second series, 20 N.Y.2d to 67 N.Y.2d. Many of those decisions can be labeled as "landmark," shaping the development of the law, not only in New York, but throughout the United States. They include Credit Alliance Corp. v. Arthur Anderson & Co., (3) which addressed the extent of an accountant's liability to non clients; Sowa v. Looney, (4) which set forth the standard for admissibility of evidence at administrative proceedings; People v. Haney, (5) the seminal decision upholding the prosecution of drivers of motor vehicles for criminally negligent homicide for death arising from their operation of motor vehicles; Shaw v. Time-Life Records, (6) which delineated the standard of liability for an unfair competition claim under New York law; People v. Schwartzman, (7) which set forth the permissible scope of cross-examination of a defendant in a criminal case regarding the defendant's commission of prior "bad acts" or criminal acts; People v. Patterson, (8) which upheld New York's concept of affirmative defenses in criminal cases; Licari v. Elliott, (9) which set the standard for determining on a summary judgment motion whether the plaintiff satisfied New York's No Fault Law threshold; Abood v. Hospital Ambulance Service, Inc., (10) which articulated the nature of the emergency warning to be implemented by ambulances or emergency vehicles in order for such vehicles to invoke the privilege to disregard Vehicle and Traffic Law provision; Kelly v. Long Island Lighting Co., (11) which explained and implemented the newly enunciated rule permitting apportionment of damages among joint or concurrent tortfeasors; People v. Davis, (12) which upheld as constitutional the imposition of criminal sanctions against narcotics addicts; and People ex rel. Scarpetta v. Spence-Chapin Adoption Service, (13) which addressed the issue of when a mother could regain her child after voluntarily surrendering the child to an authorized adoption agency. These decisions, which reflect merely one person's review of the numerous vital decisions authored by Judge Jasen, surely warrant Judge Jasen's inclusion in Thomas Jefferson's natural aristocracy.

Yet, it is the nature of a Jasen opinion which leads one to conclude that Judge Jasen is the epitome of a Jeffersonian natural aristocrat. These opinions bespeak a person devoted to the law, striving to do what he deemed to be right and not what would be popular or expedient. Ultimately, they reveal a judge honoring the craft of appellate decision-making at its highest level. The craft, as practiced by Judge Jasen, and subsequently revered by the bench and bar, warrants the accolade of Judge Jasen as a Jeffersonian natural aristocrat.

During the two years (1970-1972) I was privileged to serve as one of Judge Jasen's law clerks, I witnessed and experienced first hand this honoring of the craft of appellate decision-making. Perhaps what is most remarkable is that this ability and skill was present and observable to me, as Judge Jasen was entering only his third year of service. It was then honed over the next thirteen years. In this essay, I will make two observations on Judge Jasen's honoring of the craft. (14)

The hallmark of a well-crafted appellate decision is "clear thought and expression [with] [t]he reader always know[ing] what is at issue and how it is being decided." (15) In that regard, the decision will state the precise issue presented by the appeal and articulate explicitly how that issue is being decided, discuss fully the pertinent precedent and why or why not it is applicable, especially addressing the parties' relied-upon precedent, and, lastly, caution the reader as to issues not reached. (16) All of this must be done with "clarity of thought and lucidity of prose." (17) Any shortcoming or failure as to these qualities leads to confusion regarding the meaning of the decision, inevitably sowing the seeds for further litigation, and can give...