On Reconsideration. Warning: Broad Discretion Zone

• Author: Kenneth R. Berman
• Pages: 55-57

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Discretion may be the better part of valor.

In dispensing justice, though, it can be the

wild card. And that’s not a good thing.

The range of judicial discretion is

almost always defined as broad, its ex-

ercise reversible only when abused. On

occasion, an appellate court might re-

verse a discretionary decision, but usu-

ally the loser has no recourse. And the

nature of discretion means that, most of

the time, the judge could have decided

for the other party, with equal freedom

from reversal.

If the issue is material to the outcome,

then the outcome doesn’t depend on the facts

or the law; rather, it depends on the luck

of the draw, on which judge got the case.

To boot, the border line between a

permissible and impermissible exercise

of discretion is fuzzy. Cases use vague

words—plain error, clear error, arbitrary

and capricious, irrational, not justified by

the evidence. That leaves even appellate

judges disagreeing over whether a trial

court abused its discretion.

In Koon v. United States, 518 U.S. 81

(1996), five justices found that the trial

court abused its discretion in departing

downward from sentencing guidelines;

four justices disagreed. If reasonable jus

-

tices can differ, doesn’t that suggest that

the ruling below was within the judge’s

broad discretion?

Perhaps. But maybe they disagreed be

-

cause, with such an elusive standard, ap-

pellate reviewers just follow their gut reac-

tions, either rubber-stamping discretionary

decisions or second-guessing them.

The categories of matters left to judicial

discretion are as varied as the discretion is

broad. They include license over what discov-

ery is allowed; when to rule on motions; how

much time each side has to put on its case;

what evidence is relevant; whether to limit

or exclude impeaching, corroborating, or ex-

pert evidence; what the jury is told about the

law and how to decide the case; how much

to award in alimony; whether to order a re-

mittitur, additur, or new trial; how long to

sentence a defendant. The list goes on.

Those three features of judicial discre-

tion—its breadth, its fuzzy boundaries, and

its ubiquity—lead not only to predictabil-

ity problems but also to an uneasy feeling

that we aren’t governed by laws after all.

That’s a far cry from the justice system

Chief Justice John Marshall envisioned

in Osborn v. Bank of the United States, 22

U.S. (9 Wheat.) 738, 866 (1824):

Judicial power, as contradistinguished

from the power of the laws, has no ex-

istence. Courts are the mere instru-

ments of the law, and can will nothing.

When they are said to exercise a discre-

tion, it is a mere legal discretion, a dis-

cretion to be exercised in discerning

the course prescribed by law; and,

when that is discerned, it is the duty of

the court to follow it. Judicial power is

never exercised for the purpose of giv-

ing effect to the will of the judge, al-

ways for the purpose of giving effect to

the will of the legislature; or, in other

words, to the will of the law.

Today’s discretion is different. Consider

the Daubert trilogy: In Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), the Supreme Court held that sci-

entific expert testimony needn’t rest on

a technique that the relevant scientific

On Reconsideration

WARNING: BROAD

DISCRETION ZONE

KENNETH R. BERMAN

The author is a partner with Nutter McClennen & Fish LLP in Boston and the author of Reinventing Witness

Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018).

Illustration by D ave Klug