| "Jones —
Cogitations on Appellate Decision-Making" |
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The thirty-fifth Benjamin N. Cardozo Lecture was delivered before the Association of the Bar of the City of New York on November 28, 1979. In responding to the invitation to deliver this lecture, deliberation suggested that I might perhaps best discharge my very considerable responsibility by addressing subject matter to which I have had peculiar access rather than by exploring a topic on which the sources were equally available to others.[1] Applying that guideline I have chosen to organize thoughts and views with respect to appellate decision-making which I have come to hold in consequence of my nearly seven years of service on the Court of Appeals. I even presume to suggest that my perspectives and insights may be different from those of members of the Court with prior judicial service because I had been an active practicing attorney until I came to this bench in 1973. Given this focus, I must insist that what I say be heard and accepted only as an expression of my individual views. I shall speak forthrightly. Nonetheless I fully recognize that others, as well or better qualified than I, may and probably do hold divergent or opposing views which in the end may prove to be more perceptive and wise than mine. Least of all do I wish to be misunderstood as aiming criticism at any individual or court. Preoccupation to avoid all risk of such interpretation of my remarks, however, could substantially inhibit my expression and impair the usefulness of what I say. My objective is to be a responsible contributor to informed consideration of appellate decision-making, not to be combative and certainly never to be offensive. In this spirit I beg your attention. Preliminarily I confirm to you that there is a significant difference between discharging the responsibilities of a practicing attorney and those of a judge-a greater difference than I had foreseen.[2] We both deal in the same raw materials-human problems and legal principles designed for their solution. But the lawyer is engaged in responsible partisan representation. His client's, and thus his own, destination is preset. The challenge is to select and then to follow through with good and likely means, if not the best, to achieve that goal. I can testify to the doubts, the anxieties and the inner stress to which the lawyer is not infrequently subjected. By contrast, in the disposition of matters by the judge there is no predetermined destination. He approaches a case with no prior commitment to its outcome. As a judge I am led to the conclusion that I eventually reach by consideration and weighing of the merits; it is not my responsibility to produce a particular result to suit the purposes of a client who has engaged me. My concern is only for the best result available, consistent with a proper view of the facts, the prescriptions of statute, the impact of precedential authority, the persuasion of reason and, where applicable, the perception of policy considerations, all subjects, of course, to recognition of constitutional mandate. I do not suggest that this poses an easier task than that of the practicing lawyer; the contrary is more often true. The demand for knowledge, wisdom and human compassion is greater, and the responsibility of decision-making adds a dimension of pressure unknown to the practicing attorney. I do say, however, that we judges are exposed to less internal strife, combustion and wear and tear. This may explain in part why, having served until required by our constitution to retire at age 70, there are now living and thriving three former Chief Judges and seven retired Associate Judges of our Court! There is no gain or loss in reputation or status to me or to the others within our Court either from persistent holding to the same position or from changing views during the course of preparation, argument and deliberation on an appeal. Flip-flopping in response to whim or casuistry would, of course, be revealing, but change based on additional insight, reason, further consideration, care and ripened judgment is always acceptable, even praiseworthy. As a member of a collegial state court of last resort, I am aware that my responsibility to the Court as an institution commands the subordination of my personal interests. The coordinates by which I make choices in individual instances as to how I shall participate in the disposition of a matter before the Court are those of the best interests of the Court and of the public perception of the institution as I understand them. I am not speaking of the substantive decision on the merits of an appeal or motion; I am addressing what my role should be in the decision-making process, both internally as the decision is being reached and externally when it is announced. In the latter respect in particular I would seek, within human bounds, the submergence of individual image and status to the good of the Court |
 The Historical Society of the Courts of the State of New York |
