WHAT TRIAL JUDGES WANT (AND DON'T WANT) IN APPELLATE OPINIONS.

• Author: Lebovits, Gerald

The bodies of many a cherished opinion lie strewn along the ravine of appellate review. With little time to grieve their losses, trial judges dutifully continue to author their judicial creations, hoping that the packs of appellate judges eyeing them from above will let them pass, injured but still alive. Appellate judges are wont to suggest ways that trial judges can armor their opinions to reduce appellate predations. (1) And trial judges are always grateful for these lessons in avoiding reversal. But few nisi prius judges have commented on what they want to see in appellate opinions.

This restraint is surprising, given trial judges' intrinsic preoccupation with appellate opinions. Surpassing even their peers of the bar, trial judges represent the primary consumers of appellate writing. From these decisions they will discern the state of the law. To grasp the rationale behind each rule, trial judges must understand the facts at issue. Beyond the demands of any particular case, their appellate records affect their professional reputations.

Statistical analyses show that appellate courts are affirmance-prone. (2) But it is sometimes hard for trial judges to see this reality. In any event, the threat of reversal has been thought to instill in trial judges a necessary sense of caution and deference. (3) An excessive fear of reversal, though, can enervate opinion writers. Trial judges so motivated commit to few conclusions. They seek to minimize their exposure, although they might privately believe that the margin favoring the prevailing party is much greater. Every trial judge must steer between recklessness and paralysis.

Judges of courts of original jurisdiction find themselves in a precarious position on appeal: The four corners of their opinions are the extent of their involvement. They cannot telephone an appellate court to resolve misunderstandings. They are at the mercy of the parties' lawyers; if the lawyers argue the case poorly, the trial judge can only observe the resulting confusion. Sometimes the trial judge cannot even read the papers filed with the appellate court; papers are not always posted to the court's website.

The trial bench often turns to humor to cope with the perceived vagaries of appellate review. In one favored jest, an appellate judge tells a trial colleague, "I'm sorry, but I reversed you today." The trial judge responds: "That's okay. I reverse you every day." In another, a judge looks at two reversals, saying of the first, "What was I thinking?"--but of the second, "What were they thinking?"

The best appellate opinions address these questions. The dismay that springs anew each time a trial judge is reversed cannot be extinguished, except with time and grace. But it can be eased when appellate opinions consider trial judges' needs and wants.

Below are some likes and dislikes about the substance and style of appellate opinions--particularly those of state courts of intermediate appellate jurisdiction--from the perspective of a judge of first instance. These preferences arise from the author's own experiences, alongside conversations with judicial friends over the years. The intention is not to engage in fist-shaking toward any particular jurisdiction, judge, court, or decision. Rather, the goal is to advance some thoughts to improve the accessibility and utility of appellate opinions for trial judges.

Other readers, especially counsel and the litigants themselves, stand to benefit from these recommendations. Though trial judges are the principal readers of appellate opinions, audiences beyond the bench include law students, lawyers, legislators, and the public at large. (4) Their faith in the fairness and accuracy of the judicial system undergirds its stability. Lawyers and laypersons who submit their disputes for review, not the judges from whom higher courts wrest decisions, must ultimately be satisfied. And appellate courts may do themselves a service, too. Trial judges may feel less inclined to strain against precedent, knowing, whatever the outcome on appeal, that the reviewing court read their reasoning.

1. SUBSTANTIVE LIKES

   1. Explaining the Rationale Behind the Holding

      An opinion should reveal why the court ruled as it did--an obvious point, but one that is the earnest cry of every trial judge. Trial judges perform their work best when they understand which portions of their reasoning were endorsed or rejected, to what extent, and why.

      Though they sympathize with the pressures of high appellate caseloads, declaring that "the trial judge erred" in a few sentences of terse analysis and citations does little to enlighten the reader. Much more helpful is a decision containing a non-conclusory analysis section that restates the lower court's ruling and rationale--along with each party's key arguments--and then pinpoints how the trial judge stumbled (or strode on firm ground).

      Trial judges who can avail themselves of explanations for appellate holdings can more confidently tackle the task of recalibrating their approach to the law. They need not guess which sorts of arguments are foreclosed and which remain viable. They can better match precedents with cases before them. (5) And they can more easily tell when novel or unusual circumstances should give rise to exceptions from the ordinary rule. (6)

      By showing their work, appellate judges also offer an important gauge of whether they have treated the parties and their arguments fairly and squarely. Procedural fairness, marked in part by thorough and balanced consideration of each party's arguments, is an essential complement of a just outcome. (7) Endorsing or rebutting a party's key arguments, particularly those of the losing party, serves the dual functions of making the party feel heard and inspiring confidence in the evenhandedness of the judicial process among the broader public. (8)

      Appellate judges can elude criticism for their analysis by not explaining it. (9) But appellate judges--like all judges--are accountable to their peers, to other courts, and ultimately to the public.

   2. The Virtue of Brevity

      Brevity keeps readers alert and engaged by lifting them above the mire of minutiae, complex sentences, and disorganized repetitiveness. (10) This is not to say that length is inherently bad. Brevity need not war with the aim of explaining the factual and legal basis for a holding. The goal, instead, is to say only what needs to be said to explain and justify the outcome, making every word count.

      While judges may be eager to showcase their breadth of scholarship, the tedium of long opinions can alienate audiences. (11) Concise (and succinct) writing forces judges to reach the essential issues quickly and, by extension, affords readers more time to think deeply on them. (12) As New York Chief Judge Judith S. Kaye has stressed, a judge must know why every point put down on paper matters to the analysis or the result. (13) Given the dwindling amount of time courts can dedicate to each case, a panel's efforts to give an issue exhaustive treatment in a decision can cause the decision to be less rigorous than one with narrower ambitions. (14) An appellate panel's protracted opinion may repel the very recognition the panel seeks. Professional readers will find the panel's distracted argument less worthy of citation.

      Brevity is a virtue of both substance and style. Many of the (dis)likes below, while (un)desirable in their own right, also advance or frustrate the project of achieving brevity.

   3. Clearly Delineating Changes and Continuity in the Law

      Alongside its case-specific resolution, the appellate opinion establishes the rules of law that govern future cases concerning similar issues. The consistent administration of justice at which this precedential function is aimed demands that the contours of these rules be defined clearly, precisely, and consistently. (15) Appellate opinions should make plain the degree to which precedents are being modified--whether they are being overturned, affirmed, or merely questioned. (16) The leading cases promulgating the principle in question, not just those the parties and the trial court invoked, should be cited to signal that its application in a range of circumstances has been considered and to deter attempts to revive or abandon...