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The judicial process has two great checks to correct errors and curb abuses
of trial court judges. The first is the jury which serves as the "trier
of fact" in cases where one of the parties to a civil or criminal action
requests a jury. The second is appellate review where the rulings of the
trial court judge are subject to review and possible reversal..
When a jury verdict is issued on a case, the judges, both at trial and
during Appellate review, limit their activities to interpreting the applicable
law and leave fact finding to the jury. When no jury is involved, the judges
at trial and during Appellate review make both findings of fact and draw
conclusions of law. This means that in judge tried case, also known as
a "bench trial", the appellate courts can review both the facts and the
law.
The appellate review process is made more rigorous by the general requirement
that an appellate court that reviews the actions of a trial court is bound
to issue a written opinion which carefully reviews the important facts
and applicable legal principles. Then it explain how the law should be
applied to the facts at hand. These opinions are generally published and
serve as guide posts for future litigants. This is the process by which
the common law, constitutional law, and statutory interpretation have developed
over the centuries.
The process of writing of an opinion serves as a check on the appellate
court judges who might be lazy, or, somewhat more serious, inclined for
friendship sake to favor one litigate over another, or, even more serious,
fearful of certain litigates or their lawyers hurting a judge's chance
for re-election, or, most serious, willing to take bribes. The reason the
written opinion serves as a check is quite simple. Each opinion is going
to be read and analyzed very carefully for years and years to come and
the judge's reputation in legal circles will be injured by a poorly reasoned
or flawed opinion. Additionally, appellate court opinions are subject to
review by State Supreme Courts and/or US Supreme Court depending upon where
the trial was originally held. Poorly drafted opinions or opinions that
conflict with well established legal principles are usually overturned
by a Supreme Court
However, with the recent increase in the number of lawsuits and because
of the "win at any cost" attitude of many litigators, the appeals courts
have seen a huge increase in the number of appeals filed. They have responded
by separating cases into two groups - those that get written opinions and
those that don't. This change has made life more livable for the appeals
court judges who face this flood of cases, but it reopens the door to the
abuses mentioned above.
Today difficult cases that truly deserve consideration by the appeals court
can now be pushed into the "no opinion" category and thus ignored. The
appellate court issues a one sentence opinion "we see nothing wrong with
the trial court's handling of the matter". The "hot potato" case is thus
"dealt with". The judges on the Appellate court have acted reasonably and
there is no flawed opinion to invite Supreme Court review.
Since judges are lawyers first and judges second, the most obvious examples
of potentially difficult cases are cases where a lawyer is a party particularly
the defendant, and cases where a party to the case is a pro se litigant,
(i.e. a litigant who has chosen to pursue his case without the involvement
or expense of a lawyer). A second potentially difficult group of cases
are cases where no jury verdict was issued, that is cases where the entire
matter was handled by the trial judge, that is cases were a jury was not
involved to act as a check on the trial judge. Of course, any case can
be a "hot potato case" for an appellate court depending upon the relative
influence and prestige enjoyed by the lawyers representing the parties
and/or the parties themselves. The heat from a "hot potato" case is heightened
in jurisdictions where judges do not enjoy life tenure. Judges that have
to run for re-election, or who have to stand for retention, are necessarily
tempted to handle certain lawyers and litigants with deference.
The solutions to these problems are varied and numerous. Here are three
possibilities:
1) Capacity increases are the most obvious. Many states have increased
the capacity of their prisons and have seen a decline in their crime rates
as wrongdoers actually serve their full sentences behind bars. In like
fashion, an increase in the capacity of appellate courts would allow the
reinstatement of the old requirement that all cases get written opinions.
This solution creates the related problem of generating many more appellate
opinions to publish, to analyze, and to preserve for later generations
to read.
2) A narrower solution would be to require written opinions in all cases
where no jury verdict was issued, or where a lawyer was a party to the
case, or where a pro se litigate was a party to the case. This rule could
be implemented without increasing the capacity of the appellate courts.
3) The understandable bias of judges toward lawyers and against pro se
litigants could be muted by requiring that one third of all appellate court
positions be reserved for non lawyers. This is a very controversial proposal
because it reduces the number of high paid, high prestige positions available
exclusively for lawyers. However, since appellate courts always operate
in panels of at least three judges, the lack of formal legal training on
the part of the non lawyer/judges could be off set by the presence of two
lawyer/judges on each appellate panel.
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