Today is Sunday, September 23, 2018

Musings On Appellate Decision-Writing

By J. Lucas P. Bersamin

As an appellate court, the Court of Appeals serves a dual function. The first is the review for correctness function, whereby the case is reviewed on appeal to assure that substantial justice has been done. The second is the institutional function, which refers to the progressive development of the law for general application in the judicial system. The first is concerned with the justice of the particular case while the second is concerned with the articulation and application of constitutional principles, the authoritative interpretation of statutes, and the formulation of policy within the proper sphere of the judicial function. With each level of the appellate structure, the review for correctness function diminishes and the institutional function, which concerns itself with uniformity of judicial administration and the progressive development of the law, increases.

The duality also relates to the dual function of all adjudication in the common law system. The first pertains to the doctrine of res judicata, which decides the case and settles the controversy; the second is the doctrine of stare decisis, which pertains to the precedential value of the case which assists in deciding future similar cases by the application of the rule or principle derived from the earlier case.

The only way by which the Court of Appeals fulfills the dual function as an appellate court is to render correct and lucid decisions.

Rightly or wrongly, many lawyers and litigants have the view that appellate decisions are too long. The view is a cause for concern. Thus, the Members of the Court of Appeals should always strive to render short but lucid opinions.

There is more to be gained by considering ways to remove unnecessary verbiage than by discussing as an abstract proposition the merits and demerits of long opinions. The way to reduce the length of opinions without sacrificing clarity is to include only such factual recitals as are necessary to pose and decide the legal questions; to avoid the quotation of pleadings, testimony, documents, statutes, court decisions and text materials except where a brief reference or resume' will not suffice; to omit the multiple citation of authority except where it is important to show the continuity, weight or trend of decisional law; to avoid the explanation and documentation of long-standing legal principles; to hold the opinion on the track of central questions presented, resisting all invitations to explore inconsequential side issues and the temptation to engage in dictum (Internal Operating Procedures of Appellate Courts, American Bar Association, 1961).

Ideally, the judicial opinion should be readable, which means, in the words of Rudolph Flesch (The Art of Readable Writing, 1949, p. 145), “ease of reading plus interest.” An appellate judge should eschew long sentences and long paragraphs as well as fancy or long words. An explanation for the long sentences probably lies in the fact that appellate judges try to be too exact and complete in the making of each statement. Such tendency risks overloading sentences. The danger is that an overemphasis of the details is usually self-defeating. Cutting the long sentences may help enhance the ease of reading and force of the expression. The use of short paragraphs also contributes to ease of reading on the part of the lawyers and litigants. As to fancy or long words, writer Eugene C. Gerhart (Improving Our Legal Writing: Maxims from the Masters, 40 ABA Journal 1057) aptly said: “Long words are notoriously hard to read” and “fancy words are often merely evidences of pompous pride of knowledge.”

There are advantages if the opinion is as short, concise, explicit, and intelligible as possible. A short opinion is not of itself clearer or more definite than a long one, but a bad short opinion will be much worse if lengthened. It mathematically tends to eliminate unwanted dicta, the inclusion of which does not contribute to the discussion and resolution of the particular question necessary for the disposition of the controversy. It seems to be the better vehicle for conveying jurisprudence to farther distances. It is also more easily and generally read than the longer one.

Although writing a long, rambling, unintelligible opinion is much easier and takes much less time than writing a concise, explicit, and intelligible decision, the former may often be ineffective in expressing the reasons and the conclusions of the appellate court. The value of the appellate judgment may be obscured by any ineffectiveness of expression.

The need for unanimity in a division of 3 members notwithstanding, a member is not barred from issuing a separate opinion. A separate opinion of concurrence, being frequently an expression of personal views, often tends to be more individualistic than the main decision and is to be avoided for that reason. A separate opinion of concurrence is to be issued only if the reason, analysis, or approach is different from that given for the main decision. This is because “… a concurring opinion must justify itself by furnishing a different reason for the court’s decision, and even then should not be resorted to unless the writer of the majority opinion refuses to accept and incorporate the suggested additions or amendments. A concurring opinion which merely says the same thing in other language is not only valueless as a contribution to the science of the law but is somewhat of a reflection on the colleague to whom was assigned the duty of explaining the views . . . of the court.” (H. Stern, The Writing of Judicial Opinions, 18 Pa. Bar Association Quarterly, 40, 44 (1946).

A dissenting opinion is of a different breed. It is submitted to express a view or treatment of the issues differing from that of the majority. It is allowed in recognition of the fact that judicial unanimity can seldom be expected among judges of high independence and competence whose senses of objectivity and subjectivity on a large range of issues make differences inevitable and natural.

In cases of first impression, or difficult ones, the highest degree of prudence and analysis is demanded of appellate judges. Dissent then becomes not uncommon, for every appellate judge has taken an individual oath which imposes on him the duty which he cannot justly satisfy “by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in his mind.” (Justice Sutherland, in West Coast Hotel Co. v. Parrish, 300 US 379, 401-402). Indeed, to not a few appellate judges, dissenting can become a matter of indispensable duty, for they are like Justice Joseph Story of the U. S. Supreme Court who said in an early case (The Nereide, 9 Cranch 388, 455 (1815)):

“It is a matter of regret that in this conclusion I have the misfortune to differ from a majority of the court, for whose superior learning and ability I entertain the most entire respect. But I hold it an indispensable duty not to surrender my own judgment, because a great weight of opinion is against me -- a weight which no one can feel more sensibly than myself. Had this been an ordinary case I should have contented myself with silence; but believing that no more important or interesting question ever came before a prize tribunal, and that the national rights suspended on it are of infinite moment to the maritime world, I have thought it not unfit to pronounce my own opinion.”

However, Justice Oliver Wendell Holmes, dubbed the “Great Dissenter,” cautioned against unnecessary dissent by stating in his own first dissent as a U.S. Supreme Court Justice that he thought it “useless and undesirable as a rule, to express dissent.” (Northern Securities Company v. United States, 193 US 197, 400.

The Constitution (Art. VIII, Sec. 13) requires a dissent to be explained unlike in the event of a concurrence. Thus, there is a responsibility in writing dissenting opinions. No dissent should be filed unless it is reasonably certain that a public gain, as distinguished from a private one, will result. This being so, the test which each judge should apply is: Is the matter of such public importance (being careful to distinguish this from mere ephemeral interest) that a dissent is needed in order to safeguard the rights of the citizens generally, or future litigants in like cases? This would exclude all dissents where the only difference between the judges is in relation to practice or procedure, to matters of fact, or to the construction of particular contracts; for in these the public has no interest. A misunderstanding of the facts, or a wrongful interpretation of a contract, affects only the parties to the litigation (Judge Alex Simpson, Jr., Dissenting Opinions, 71 University of Pennsylvania 205, 216).

While they have value of manifesting a divergence of views and opinions to encourage a future reopening or re-examination of the issues, and of serving, at times, to police the majority by pressing toward the reckonability of result through forcing or suggesting transparency and publicity, elaborate dissents can weaken the effect of the majority opinions and engender want of confidence in the conclusions of the appellate court (Pollock v. Farmers Loan & Trust Co., 157 US 429, 608). To justify an elaborate dissenting opinion, the question of law should be one of at least considerable importance. To justify a denunciatory dissenting opinion, if denunciation of a colleague can be justified at all, the question of law should be one of exceptional importance and the errors pointed out should be of the gravest nature. In other words, the opinion of the jurist should express his reason, not his feelings (Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent, 39 ABA Journal 794).

But it is never desirable to suppress or stifle dissent in collegial courts. As Justice Felix Frankfurter has stressed: “Dissent is essential to an effective judiciary in a democratic society.” (Ferguson v. Moore-McCormack Lines, 352 US 521, 528). The occasional loss of confidence should not be the reason to silence disagreement, for, it ought to be remembered that what must ultimately sustain the courts in public confidence and esteem are the character and independence of the judges, who are not there simply to decide cases, “but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice.” (Chief Justice Charles Evans Hughes, The Supreme Court of the United States, Garden City Publishing Co., Inc., 1936, pp. 67-68).

Admittedly, there are times where no principle of importance is at stake. Then should dissent be avoided, for an insistence upon a division will not be in the interest of the best administration of justice (United States v. Swift & Co., 318 US 442, 446).

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