Point: Justice Must Satisfy the Appearance of Justice, 0113 ALBJ, 74 The Alabama Lawyer 18 (2013)

• Author: Rhonda P. Chambers.

POINT: Justice Must Satisfy the Appearance of Justice

Vol. 74 No. 1 Pg. 18

Alabama Bar Lawyer

January 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A 10-year Review of the Alabama Supreme Courts Treatment of Jury Verdicts in the Plaintiffs' Favor^[1]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Rhonda P. Chambers.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A day in the life of an appellate lawyer is sometimes as lonely as it was for the Maytag repairman.^[2] Fifteen years ago, appellate lawyers were shackled to the law library between the book stacks and volumes of a record on appeal waiting for the phone to ring. The supreme court clerks office would call Friday morning to advise of the results in your case on appeal. Forever etched in my mind is, "This is Norma from the supreme court clerks office calling on the case of...." You would have to ask that the clerks office fax a copy of the opinion if you wanted to see it before your mail was delivered Monday. The clerks office could not fax the opinion until after 1 p.m.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Now, thanks to modern technology, we can work anywhere there is a computer. The record on appeal is available electronically. Every Friday at 10 a.m., like clockwork, I find myself reviewing all of the cases released by the Alabama Supreme Court. I get an email letting me know that the cases have been released, and I can download directly to the link for the case release list. I can read the cases on my computer, phone or iPad from anywhere.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Because of this technology, it is not difficult to create charts to track the Alabama Supreme Courts treatment of plaintiffs' jury verdicts. This article is based upon a 10-year snapshot of the Alabama Supreme Courts treatment of plaintiffs' jury verdicts.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the 1954 United States Supreme Court opinion, Offutt v. United States, 348 U.S. 11, 14 (1954), Mr. Justice Frankfurter stated that "justice must satisfy the appearance of justice." Chief Judge Howard T Markey, the only person to have served as a sitting judge or by designation as a judge on all of the United States federal appellate courts, said that the "appearance of justice is today seen not as separate from, but as an integral part of justice itself... It simply is not enough that justice be actually done. It must be seen to have been done"^[3] The question then is what do we see when we review the past 10 years of Alabama Supreme Court opinions?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Affirming Judgments Entered on a Jury Verdict without An Opinion

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Ala. R. App. P. 53 was adopted in 1993. The Rule was an attempt to allow the civil appellate courts to dispose of cases in a much faster and more efficient manner and to reduce the number of opinions being written.^[4] Rule 53(a) states that the supreme court or the court of civil appeals may affirm a judgment or order of a trial court without an opinion in one of six limited circumstances^[5] and if the court determines that an opinion in the case would serve no significant precedential purpose. The Rule only provides for summary affirmances without an opinion. It does not provide for a summary reversal without an opinion.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An affirmance without an opinion is appropriate in certain circumstances. In many instances only a sufficiency-of-the-evidence question is involved, or an application of well-settled law-of importance to the parties but of no precedential value-and this kind of appeal may well lend itself to an affirmance without opinion. In other instances, the court may feel that the result below was proper but for the wrong reasons or for different reasons than those argued. In some cases, some or all members of the court may feel an appeal raises a troublesome legal issue of general interest but that the record on appeal is too confusing or inadequate to present the issue for a considered written opinion, and the court chooses to wait for another appeal. In such cases, if the result is nevertheless proper, affirmance without an opinion maybe used.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0When the supreme court or the court of civil appeals affirms a judgment without an opinion, in its order of affirmance, the court designates the case as a "no-opinion" case. Also, in its order of affirmance, the court cites section (a)(1) of Rule 53 and that subpart of section (a)(2) relied on in its decision to write no opinion. The reporter of decisions publishes all opinions of the supreme court and the court of civil appeals in the official reports of Alabama decisions, but the text of an order of affirmance in a "no-opinion" case is not published in the official reports. Ala. R. App. P. 53(c).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If in a "No Opinion" case a justice writes a special opinion, however, either concurring with or dissenting from the action of the court, the reporter of decisions publishes that special opinion, along with a statement indicating the action to which the special opinion is addressed. An example of this is the medical malpractice case, Springhill Hospital, Inc. v. Dixon, 883 So.2d 159 (Ala. 2003). In that case, a Mobile County jury returned a verdict of SI 75, 000 past compensatory damages, S62.000 future compensatory damages and $345, 000 punitive damages against the hospital. The hospital appealed, and a per curiam court affirmed the case without an opinion. Justice See wrote a dissent in which Justice Brown and Justice Stuart joined. Because of the written dissent, the public was able to see the amount of the jury's verdict.^[6]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0An affirmed no-opinion case has no precedential value and cannot be cited in arguments or briefs except for the purpose of establishing the application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy or procedural bar. Ala. R. App. P. 53(e). A recent case that was affirmed in a 9-0 decision without an opinion was Lanier Health Services v. Coulter, (Ms. 190716, Dec. 16, 2011). In that case, a Chambers County jury returned a SI.75 million wrongful death verdict against the hospital. The only way the public knew about the appellate result in this case since it was affirmed without an opinion was because it was reported in the press. The newspaper reported that "it was the first appellate decision in Alabama upholding the legal principle that a hospital's staff must go up the chain of command to obtain safe care when a doctor has failed to do so."^[7] This was a great result for the plaintiff in the case, but, unfortunately, since the court decided the case without a written opinion, this important legal principle does not have any precedential value. It has been said that "[t]o the extent that the law is published, it is available to all; to the extent it is unpublished, it supplies only a private good."^[8]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Importance of Written Opinions

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Full, well-reasoned written opinions serve a variety of functions. They are informative as to the reasoning behind the court's decision. They also educate the bar, the lower courts and the public at large. They provide guidance to the lower courts and also to lawyers on how to best counsel their clients. They can be used by attorneys to predict and plan what the court may decide. Furthermore, they help to ensure that the appellate court has made the correct decision. Finally, a well-reasoned opinion is one way to guarantee equal justice to the public and to satisfy the perception of justice. Without an adequate explanation, a dissatisfied litigant who receives an affirmance without an opinion may jump to the conclusion that the court did not write an opinion to conceal the rationale for its decision for some improper reason. There are concerns that an affirmance without an opinion practice does not treat everyone equally and fairly.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The court has indicated that it does not appreciate criticism about its no-opinion affirmances. For example, in S.B. v. St. James Sch., 959 So.2d 72 (Ala. 2006), the court originally affirmed the summary judgment without an opinion. The appellant filed an application for rehearing urging the court to change its mind and reverse the summary judgment. The appellant also complained about the courts Rule 53 affirmance without an opinion. The court denied the rehearing but stated in a written opinion:

This court originally affirmed the summary judgments of the trial court in the underlying case without an opinion. The decision to affirm the judgments of the trial court without an opinion was made because an opinion in this case would add little precedential value to the areas of the law discussed, and this court concluded, after reviewing the record and the contentions of the parties, that the trial courts judgment was entered without error of law. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. In addition, because of the sensitive nature of the facts of this case, this court did not want to subject the families involved to the further embarrassment and humiliation that might be brought about by a published opinion. However, counsel for the appellants strongly criticized this court in the applications for rehearing filed in these appeals for failing to issue a published opinion; therefore, this court has reconsidered its decision not to release a published opinion in this case, withdraws its no-opinion affirmance ... and substitutes the following opinion therefor.

959 So.2d at 79.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Also, in the case of Dennis v. Northcutt, 923 So.2d 275 (Ala. 2005), the court affirmed the trial courts summary judgment without an opinion. In his application for rehearing, the appellant made the following statement about the courts issuance of a no-opinion affirmance in the case:

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