I (a reader suggested that I stop using the royal we) attended the federal judicial conference at the Samoset last week. The topic du jour was social media, so that was the new. The conference closed with observations from two district court judges, Judges Hornby and Singal, who have been on the bench for many years, and recounted stories and all the changes they have seen, which was the old.
On the latter front, the changes they noted, aside from the upside of new technology, seemed mostly heading in a negative direction. With fewer trials, especially jury trials, and more security, court houses, they noted, have become silent and cut off from the public. In the past, these were important public gathering places; for example, there used to be retired folks who would come to watch trials every day. With motion days gone, trials few and far between, and security worries, except for life’s rich pageant that is the Maine State District Court (show up to defend against a speeding ticket and join the crowd) people – ordinary people – don’t really participate much in the justice process or see it happening anymore. That’s unfortunate. Cameras in the court room might be one step, but that’s going nowhere on the federal front.
To end this blog entry on a more upbeat note, watching Judge Hornby speak reminded me of the beauty – and I used that word purposely – of his written opinions.
Because he has senior status and we have such a bevy of judges in the federal District of Maine, he doesn’t draft many of these anymore. This is too bad, because I have never seen anyone, anywhere, better able to distill and apply the law. His opinions are generally as short as they possibly could be, but still cover all the issues. I remember reading one opinion in a case I was involved in, and at the start wondering how such a complicated motion could be resolved in such a short decision. Then I read what he wrote. He managed to put his finger on the heart of the issue, and made the outcome look simple and inevitable.
This is a lost art. If you look at 19th Century Supreme Court decisions, they are short. Over time, they have become longer and longer. This can be attributed to many factors – for one, with computers it’s easy to search, cut and paste, and drone on and on. Also, we are so fast paced now, we don’t take the time to just think, and cut out the fat – it’s the old apology of handing in a long paper because you didn’t have time to make it short.
As lawyers, we sometime need to draft longer briefs because we have to explain the record and raise multiple arguments, and because our job is different from the court’s – we need to give the judge a complete picture. While we should be as concise as possible, we still need to put everything in that could affect the court’s decision-making.
That said, while the judge’s job is different – to gather, then distill – it’s not easy to write a short opinion. One purpose of a judicial resolution is to give the parties closure, making them understand that their concerns have been heard. Hence, there may be a tendency to include summaries of the parties’ arguments in the decision to show that this has been done. If you read a FERC decision, for example, sometimes it’s endless pages of listing each sides’ arguments. But the meat of a decision is explaining why the judge chooses to rule as s/he does. No one feels closure if the decision says “Party #1 said [pages of summary] while Party #2 said [pages of summary]” if no clear reasoning is provided as to why the judge chose one position over the other.
Judge Hornby is the master at showing that he understood what everyone was saying, explaining why he came out the way he did, and doing so in very few pages. You don’t always have to agree with the bottom line as to how he comes out; but, perhaps paradoxically, more than endless pages, his type of writing reflects that a lot of thought has gone into his decision-making.