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The Appellate Judge Has an Opinion, but He's Not Sharing It
Special to Law.com
February 19, 2008
Howard J. Bashman
Related: Bashman Archive
As someone who blogs about, and offers commentary about, appellate court rulings, I appreciate the modern trend of appellate courts' issuing written opinions setting forth judges' reasons for reaching their announced outcome. Yet, as an attorney who regularly represents clients in appellate proceedings, I can also appreciate the desire to see appellate rulings issued in a timely manner.At times, these two interests can conflict. For example, an appeal in which the court reaches a unanimous decision may result in the issuance of a written opinion much more quickly than an appeal in which each judge on the court decides to write separately to explain individual views about the case.
Over the past several years, I have occasionally noted instances in which the third judge on a federal appellate court's three-judge panel attaches to an opinion a statement that merely says, without explanation, that he or she concurs in the result or the judgment. I have wrestled with myself as to whether or not such a statement, when bereft of any further explanation, is something that should be praised or criticized.
On the one hand, you cannot help but wonder what aspects of the majority opinion precluded a given judge from joining in the majority's explanation of its reasoning. On the other hand, you can infer that while those differences of opinion were important enough to preclude the third judge from joining in his or her colleagues' opinion, those differences were not important enough to cause that third judge to explain publicly what the differences were. And, of course, the third judge's decision not to write separately presumably caused the court's ruling to issue more quickly to the public and the parties than if the third judge had written separately.
No doubt one could take the position that once two judges on a three-judge appellate panel concur in the reasons for reaching a particular outcome, it is immaterial what the third judge thinks. From this standpoint, one might expect to see more frequent instances of a third judge dissenting from the outcome without providing any explanation. In reality, dissents without explanation are extremely rare -- which is fortunate because it is useful to the advancement of the law when a judge who disagrees with the majority's reasoning or outcome explains his or her views.
Also quite rare, thankfully, are instances in which one judge on a three-judge appellate panel writes an opinion and the other two judges simply note that they "concur in the result" without joining in their colleague's opinion or offering any separate opinions of their own. In this scenario, the one opinion that exists would be of absolutely no precedential value because it did not reflect a majority view.
When an appellate judge writes separately, it provides a rare opportunity for the judge to speak his or her mind without having to take into account the comments or input of other judges joining in an opinion. Moreover, an opinion that provides reasons as to why a judge is concurring only in the majority's result, but not in the majority's reasoning, need not be excessively long or complicated. In many instances, the basis for disagreement with the majority's reasoning can be stated very succinctly.
It would be preferable, in my view, if a judge who is tempted to concur in the result without opinion would instead undertake to express in just a few paragraphs why he or she disagrees with the majority's reasoning, so that the public and the parties can appreciate the basis for that judge's disagreement. Providing this sort of simple explanation would not necessitate untoward delay, and it would remove the mystery and concern that arise when a judge in disagreement with the majority's approach keeps those views to himself or herself. Was the judge too busy to write separately? Did he or she view the case as too unimportant to justify any explanation? Or was the judge simply following the time-honored advice that it is better to remain silent and be thought a fool, than open one's mouth and remove all doubt?
CONCLUSION
A judge who cares enough to note his or her disagreement with the majority's approach should dignify the case with at least a brief explanation of the reason for that disagreement. And if he or she cannot supply such an explanation, then perhaps he or she should simply join in the majority opinion.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
