| "Jones —
Cogitations on Appellate Decision-Making" |
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While this is an articulable goal, progress to it will inescapably encounter some understandable individual counter-considerations. I do not say that they should be obliterated; I do say they should consciously be kept in responsible check. The frame of reference for the consideration and resolution of questions as to the extent and manner of personal participation in the announcement of the Court's decision must be an awareness of the likely consequences to the institution. It is evident to me that injury to the Court works damage to each of its members. The status of the individual cannot be advanced at the expense of the Court or to the detriment of the sound development of the law. I lay down what I perceive as these general ground rules by way of background and prerequisite to the understanding of my views on the more specific topics I am about to discuss. Without in any way presuming to describe or analyze the judicial decision-making process (on which so very much has been written), I would only identify three of what I think are significant factors in that process which may not always be fully comprehended. First, when one bears the responsibility as a member of a court for the actual decision in a case it is different from when his role as a commentator or advocate is only to suggest or urge what the right decision should be or have been. Thus, the writing of an opinion in a case involves dynamics not present in the writing of a treatise or law review article, or certainly in a brief or law office memorandum. All deal, of course, with factual analysis, legal authorities and precedents, policy considerations, sound reasoning and wisdom. The work of scholarly and thoughtful analysis and exposition, however, somehow comes vibrantly alive when people will be, commanded to live by the result which is produced. Additionally, there is not only the dimension of human involvement and dynamics; each case has an independent life of its own. Account must be taken of its evolution, both prelitigative and after the action or proceeding is commenced. Significance may come from its progress through the courts below before it reaches us. I am not speaking now of procedural steps and postures, but rather of factors, nuances, overtones which give each case its own identity and which may affect the ultimate disposition. Second, I have become increasingly aware of a special difficulty in making decisions at our level. Ours is a responsibility both of reviewing individual determinations for the correction of error below and of preserving and strengthening the fabric of the law. Because in New York there is assurance in most cases of the availability of intermediate appellate review by a court with broad interest-of-justice jurisdiction, I attach great importance to our responsibility to develop the fabric of the law, more so, perhaps, than to other concern for remedying what may be claimed to be unjust results in individual cases. In the best common-law tradition this responsibility is discharged, of course, through case-by-case evolution and refinement. When the individual case comes to us, however, there are inescapable considerations of ramification and ripple. And here lies the difficulty. Counsel properly focus on the disposition of the particular case, and quite understandably are only minimally interested in its implications and possible radiations, unless, of course, projection of the holding brings spectres or consequences which bear directly on the desirability of one result rather than mother. My experience has been that appellate briefs and arguments on the whole insufficiently set the case in the broader contexts of the legal and jurisprudential mosaic. Because of the volume of our work, ever increasing, the individual members of the Court have little time to indulge in research and cogitation beyond the close borders of the case at hand. It is here that the multi-varied backgrounds of knowledge and experience of the members of a seven-member court can be most helpful. In attempting to discharge what I believe is my responsibility in looking beyond the particular litigants and the particular litigation, I have been enormously aided by the American Law Institute. I refer to the Several Restatements of the Law, but perhaps even more to the benefits I enjoy as a member to participate in the annual deliberations of the members of the Institute. In the third place, and I surely claim no originality whatsoever, I have become totally persuaded that if care is taken in objective, rigorous analysis (this is critical and usually determinative) and if there is then painstaking attention to the procedural aspects of the case, the correct substantive conclusion emerges with less difficulty. It serves further to reduce the risk of result-oriented decision-making. Finally, as to decision-making, I would venture a word or two as to the scope of a decision. I brought with me to judicial duty two competing persuasions. As a student in a seminar at Harvard Law School from which Felix Frankfurter was called to serve on the Supreme Court of the United States, I was imbued with a deep belief in the wisdom of judicial restraint. On the other hand, as a practicing attorney I sought from judicial decisions the announcement of black-letter law on the basis of which I could predictably rely and advise my clients. When, most often, there was no authoritative precedent in point, I wished to be spared the uncertainty and responsibility of extrapolation. A common-law disciple, I wanted to be a code practitioner. My judicial experience has convinced me beyond recall, as similar experience has persuaded others, that judges lack the competence or clairvoyance to anticipate the implications and ramifications of broad announcements and as well the wisdom to formulate them. The genius of the common law as I first learned it years ago has very much come alive. While I understand, of course, the yearning of the practicing lawyer for comprehensive declaration, and I sympathize with him, he will not find in me a congenial spirit or a useful colleague. Let me turn now to make an observation or two as to the writing of opinions. This is an area in which individual preference and style properly play a major part. Accordingly comments on this topic would be better made by those who use the opinions. But let me reveal my own perspectives. As you are aware, in recent years it has been the practice in our, Court to assure a writing in every case; we no longer have recourse to the once familiar acronym, "ANOPAC" (Affirmed, No Opinion, All Concur). In general our present practice is as follows. If there is a writing in a court below, in the intermediate appellate court or at nisi prius, which adequately articulates the grounds for the correct disposition, we rely on and refer to that opinion, both for affirmance or for reversal. If there is no such writing and the case is judged to have little precedential value (no case has none!) a very brief memorandum is prepared which without elaboration informs counsel and the litigants why we reached the result we did. It is my practice generally to include in such memoranda no citations, either of statute or case law, to spare hard-working Shepardizers excursions into blind alleys. If the decision involves the application of recognized concepts but may be expected significantly to affect others than the parties to the particular litigation, the result may be announced in a Per Curiam opinion. This will not ordinarily be of extended length or elaborate exposition but will contain citation to the applicable statute, if any, and to a leading case or two, again with the interests of the researcher in mind. If, however, the case involves the articulation of new law or a new application of recognized principles, it is usually appropriate that there be a fully developed, individually signed opinion. The pertinent facts will be recited, the problem will be identified and described, there will be a treatment of the relevant authorities and in exposition of the rationale by which the result is reached: You may have identified personal preferences which I indulge in writing my own opinions. I think it useful, for instance, in the first sentence or paragraph, by way of orientation to the beleaguered reader, to identify the area of the law to be addressed and to summarize the holding. I think it appropriate to recite only those facts which I judge to be material to an understanding of the problems presented and an appreciation of the resolution reached, save that occasionally there may be included as well a selective scattering of animating but otherwise immaterial data to bring the case to life. In the exposition of the legal reasoning I strive to use citations precisely but sparsely. I leave it to law reviews and text writers to collect the authorities; I do not view the function of an opinion as an aid to research. I would be less than honest if I did not confess that this practice was first dictated by necessary concessions to limitations of time, energy and resources. I am now persuaded of its inherent worth and accordingly seldom have recourse to string citation. |
 The Historical Society of the Courts of the State of New York |
