A hissy fit this morning from Greenfield and another blawger named Josh Blackman over an opinion by Judge Posner of the 7th Circuit US Court of Appeals.
It’s interesting, because on the one hand I found the little experiment the judge conducted in chambers kind of startling myself, at first. That is, my first inclination was that this was improper.
But thinking it through a bit, juries do that kind of thing: conduct some little experiment while they are deliberating to see if they can figure out who’s telling the truth. Watch 12 Angry Men sometime. Seems like that’s all the jury did when they weren’t at each others’ throats.
Anyway, if a jury can do something like that can’t a judge, to the extent the judge has to determine a fact?
Of course, appellate court judges do not determine facts. Not directly. As Blackman and Greenfield point out, the record on an appeal is fixed, nothing else comes in or out. That’s pretty basic to the whole idea of an appeal, at least in our system. Such as it is.
But there are limits to this principle. As a general rule, intermediate appellate courts do have jurisdiction to ‘review’ – that is, second guess – the fact findings of the trial court. And there are times they should do so. Many more times than they actually do, in my experience.
The ‘standard of review’, it is constantly noted, is ‘highly deferential’, although deference is as deference does and there is an obvious disparity on how much deference there is depending on which kind of litigant benefits: lots and lots when the favored litigant has prevailed in the trial court; none when the disfavored litigant has prevailed.
But I digress.
Greenfield and Blackman are a bit off, and they’re being a little unfair to Judge Posner. The evidence in an appeal, it is true enough, is fixed in the record. But evidence isn’t always res ipsa loquitur. Interpretation is sometimes necessary. A fact finder is entitled to interpret where he feels he needs to, and a judge reviewing a fact finder is entitled to do that, too.
There are some contentions that are true, or they are false, and the conclusion is not debatable, at least not on the practical level on which we operate on a day to day basis and not, therefore, in our courts of law. If we fairly assess what an appellate judge might do in ‘reviewing’ the facts found by the trial court, he surely has an obligation to point out a fact finding that is clearly wrong, or absurd.
We’ve been over this idea here at Lawyers on Strike several times. We return to it occasionally simply because we reject the notion that the “adversarial process” requires courts to seriously entertain the clearly false, or the clearly fraudulent, or the clearly stupid.
Now is there a danger that a judge, or a jury, will mistakenly conclude the degree of clarity required, or involved? Sure. We live in a dangerous world. Greenfield:
The possibilities are endless for judges to conduct secret experiments in their chambers, or on the streets, or, if they have any clue how to gain access, on the internet, to figure out “who was telling the truth.” The flaws of the experiment will never be known, never be subject to question or challenge, and yet will dictate the outcome for people’s lives and fortunes. What could possibly go wrong?
Two things here: first, Judge Posner’s experiment wasn’t “secret” – he disclosed it in his opinion, for which he should be given credit, not excoriated. And second, it doesn’t seem quite right to complain that a judge wrongly believes himself to have some sort of clarivoyance about assessing witness “demeanor”, and finding the truth that way; but then complain more loudly when he eschews that kind of superstition for a more rational and better method.
At some point the fact finder – or the fact reviewer – must make his decision and the time for the advocates to have input is past. That might rankle ego-centric lawyers who feel their input can be both absurd and never-ending and the fact finder must listen to it, but I have to disagree.
There was nothing wrong with what Judge Posner did, especially considering he disclosed it in his opinion.