The Ivory Tower of Appellate Judges
I have just read an appellate decision on a case that I handled in the trial level. As always, it is hard to recognize my case since the facts as stated by the appellate court have very little relation to what occurred. As any trial attorney knows, any correlation between the facts on appeal and the facts tried are only coincidental. Why is this? Why is it so hard for appellate judges, outside the heat of battle of the trial court level, to apply some rationality and honesty to the issues before them? Ninety percent of the cases brought to appeal by an attorney can be reversed or affirmed depending on what judgment calls the appellate judges make by emphasizing some facts and law while ignoring others. What is this judgment that is the decisive factor but a factor never explained or even mentioned in the appellate decision itself?
A large part of this has to do with the natural inability of human nature to see any view or to understand any thought other than their own. Very few people are naturally empathic. For those who are not, it requires extremely hard mental work, education, and mental discipline to become so. Even fewer engage in such a process. Trial attorneys even if they are not concerned with empathy as a virtue but only as a means to success must if they want to survive understand the opposing side's case or view in order to defeat it or to know that they may be defeated by it. The miserable work that negates nature and develops such an understanding requires years to succeed and that success usually occurs after a painful defeat.
The vast majority of appellate judges never had this ability nor to they ever have a need to develop it. A judge, whether appointed or elected, conservative or liberal, is primarily a politician and only secondary, if at all, an attorney. They accept illusion as practically more important than substance. They got their job by understanding who the powers-that-be are and making that power happy. They worked and work within the system and are part of the system. Any mind set that would cause them to see and appreciate a view contrary to their own or outside the system and really disturb it, not just nominally or ephemerally cause a politically correct ripple, but to really have a completely contrary view is beyond their nature or they would not have gotten the judgeship.
Furthermore, this natural inability is worsened by the fact that appellate judges exemplify ivory tower philosophers spitting out ideas that have no control by reality. Their personal ideas are pure and enforceable law. They are never critiqued nor could anyone do so since there is no basis for a critique. What they say is law and is by definition correct. The only way outside of it is by rational principles of reason, logic, and ethics. However, we have rejected all such argument to have the efficiency of allowing only legal arguments. Of course while we do this, we complain about having too many lawyers and litigation and such, but hey what the heck, hypocrisy is not a crime.
The most dominant factor in their judgment as to what facts or law to ignore and what to emphasize is the idea that the underlying decision on appeal must be affirmed as long as it does not contradict what they believe to be right or just. As part of their professional courtesy to fellow judges and as part of the desire to exhibit the system to be true and accurate regardless of how false and erroneous it really is, it is vitally important that judges be shown to make few mistakes. After this factor, there are probably an infinite number and variety of factors that affect this judgment: political and ideological views, the nationality or race of the parties or attorneys, the demeanor or style of the attorney or party, what the judge had for breakfast that day, what the judges law clerk had for breakfast that day, and so forth to name any possible view, prejudice, opinion, or bias that a human being may have.
What would be so wrong or hard in admitting this reality so that we can compensate for it? Would it not than be possible to bring the appellate system into the twentieth century (we would work on the 21st later) by such minor changes as actually having mandated basic educational requirements and qualifications for judges, competency tests, and even an independent examination board to review their performance? How about a real change such as admitting that what they are really doing is making ethical judgmental decisions and then force them to write their ethical views of the issues and parties in their decisions and to start studying, knowing, and applying ethical logic and reasoning!