The other day, I received an email from a lawprof (yes, some of them do chat with me on occasion) about a decision in which he was involved that resulted in a huge win for the good guys.  While still basking in the glow of the win, he expressed his disappointment in the decision itself, rambling and often incoherent.  The view is often different from the inside.

My response, though he didn’t ask for my thoughts, was that we always dream of a brilliant decision, the kind that is cited forever with approval, but we take a win no matter how ugly.  They just don’t come along with great frequency.  An ugly win is a win nonetheless, and absent knowledge of all the specific facts and circumstances, the real details of the case, the wins don’t look so bad from the outside.  It’s like having a case in the newspaper, where we know that they’ve got the facts all wrong, but if it works to our advantage, we take it anyway.

What’s curious about this is that those of us who read judicial opinions and try to figure out what impact they might have on our work spend such an inordinate amount of time trying to make sense of things that the insiders know makes no sense at all.  This comes from a variation on the presumption of regularity, that judges aren’t all nuts, stupid, deceptive or manipulative.  We presume that the facts recited are accurate, and that there’s a legitimate reason that they’ve reached whatever decision they’ve reached, without being openly cynical about it.

Then comes along an opinion like Judge Stephen Reinhardt’s, concurring in United States v. Hickey , via Mike at C, which blows the lid off of the secret world of make-believe of appellate courts.  They’ve got a decision to make, and they aren’t going to let anything like reality stand in the way.

I do not favor depriving words of all meaning simply in order to reach a desired legal result.  Here, I see no reason, rational or otherwise, to treat the word “superseding” as meaning “not replacing,” as we have done before and as we do again here.  An abundance of judicial creativity has been devoted to tasks like interpreting “another” to mean “the same”[fn2]; “slight” to mean “substantial” [fn3]; and “superseding” to mean “not superseding” [fn4].  I propose redirecting that creativity to better uses, such as finding terms that actually mean what they appear to mean. We could start by using “second indictment” or “first additional indictment” to describe an indictment that follows the original indictment, but does not “supersede” it. Were we to do so, we might earn more public trust and respect than we are accorded now. Any additional amount, no matter how slight, i.e. substantial, would be most welcome.

Mike has all the details of the case, not to mention to footnote citations, in his post.  My concern is more about the game played, the one where we parse appellate decisions for significance in their language and implications for the future.  We can argue this stuff all day, as if they carefully crafted each phrase, each sentence, to convey something of lasting importance to the law. 

Who the heck are we kidding? 

Now I enjoy doing appeals as much as the next guy.  Crafting an argument, well cited with incisive quotations from esteemed judges that clearly present my arguments, fully grounded in firm law, can be very satisfying.  And yet decisions come back that make me wonder if we’re talking about the same case.  The facts of the case seem only vaguely familiar, and sometimes there are new facts according to the decision that can’t be found anywhere in the evidence.  And then there is the black letter law that says “day”, and then the “but” conclusion that says “night”, happening so suddenly that I’ve risked whiplash trying to figure out how the decision got from here to there.

Am I naive when it comes to my own cases?  Hardly.  I’m every bit the skeptic you find here.  But I can be a bit optimistic that this case, this decision, will be the one that reflects an honest and accurate application of law to fact.  By fact, I mean what actually happened in the case, rather than a set of “facts” that exists only in the facile vision of a hell-bent judge.  I feel quite fortunate to have had a fairly good number of sound decisions, both at the trial and appellate levels.  But like all lawyers, I’ve had my share of Alice-in-Wonderland decisions that make my want to scream.

It would be easy to rationalize the bad ones, the incoherent ones, the painfully wrong ones, based on Judge Reinhardt’s brutally honest concurring opinion.  Even paranoids have enemies, right?  But to do so would be to give up all hope, and without hope we would stop striving to achieve the best we can for our clients.  We need to pretend that there’s a chance that our next decision will be a great one, a monumental one, a decision that students of the law will be required to learn.

And yet, if we just get a win in an ugly, incoherent, rambling decisions, we’ll take it.  If they want to use the word “slight” to mean “substantial”, at least let them do so in our favor.  Trust me, it won’t happen often.