It is a privilege to have been appointed Presiding Justice of the Appellate Division, First Department, and to be able to work with Chief Judge Janet DiFiore in implementing her historic Excellence Initiative. At the First Department, we have eliminated a longstanding backlog of appeals and recently began live-streaming oral arguments in response to requests from the public and the bar. From e-filing to standardizing Appellate Division practice rules to developing a uniform guide to New York evidence, our judiciary is taking needed steps to modernize and become more efficient.
Yet, while modernizing the courts and increasing access to justice are laudable goals that deserve our attention, there are many other issues that merit a full and frank discussion; nothing should be left off the table. In my view, we are only at the beginning of what must be a sustained process of consciously rethinking how law is practiced and justice administered, a process that requires all of us—the bench, the bar, and the public—to revisit basic values to safeguard the third branch of government.
For example, it is often the case in law practice that cleverness is valued at the expense of candor. Creating clever arguments to circumvent weakness in a legal position is generally accepted as a lawyer’s obligation. This starts in law school, where students are often rewarded for generating almost any argument in support of a position. Later, in practice, lawyers too often give crafty excuses for refusing to disclose material, or they fail to grapple with inconvenient precedent.
Indeed, in my experience on the bench, I have read a surprisingly large number of briefs where either a case does not stand for the proposition for which it is cited, or where, instead of the traditional distinguishing phrase that advises a court of the existence of a disagreeable case on point (e.g., “While it is true that Smith … .), the case is simply ignored.
However, honor and fairness—principles at the core of our legal system—should not be sacrificed to side-step unfavorable precedent. Briefs should not distort the proposition for which a case stands. Disingenuous arguments are a source of frustration for the bench, which uniformly prefers a thoughtful and honest case analysis, with points of departure from controlling precedent candidly stated. I understand the powerful forces pushing lawyers, but we must remember that we are part of an ancient and honorable profession, which is adulterated by the abuse of cleverness.
To be sure, a call for a renewed focus on candor and fair play will strike some as weak tea or as quixotic. But I firmly believe that if our adversarial system is to deliver justice—which should be its goal—the insistence that lawyers eschew overly cunning tactics will enable our legal system to maintain a sustained focus on fairness, which is long overdue.
Of course, the judiciary is not immune to the temptation to use cunning at the expense of candor. I have often read decisions supported by a selective analysis of critical facts. With the power of the pen, judges sometimes covertly try to impose their own worldview or ideological leaning. This is, simply put, the wrong way for the judicial branch to operate. Result-oriented decisions, which disregard critical facts or twist legislative intent, impair our legal system by endangering the rule of law. I believe that judicial candor—which depends on the full disclosure and forthright analysis of relevant authority in judicial decision-making, whether involving the interpretation of statutes or case law—is vital to a productive, functional court system. I strive for this in my own work and would respectfully encourage my colleagues and future judges in the same direction.
As part of a movement toward candor, we may also want to reconsider the role of confidentiality in civil legal proceedings. There are many facets to this complicated issue and I will only attempt to explore a few in this essay. Often, businesses caught up in litigation understandably seek to keep competitive and proprietary information secret, so confidential settlements are common. Balanced against this is the view that confidentiality agreements or orders hinder public awareness of systemic, wrongful conduct in the marketplace. The interests of promoting candor make it imperative that we constantly seek to reach the correct equilibrium here.
Do judicial devices that maintain the confidentiality of parties and terms of settlement have more value to society than open judicial proceedings? This is a question that continues to confront us. On one hand, reducing confidentiality in settlement might mean fewer case resolutions and an increasingly clogged docket. Conversely, retaining the cloak of secrecy in many areas—such as cases involving sexual harassment, products liability, discrimination, and finance-related misdeeds—might allow systemic misconduct to continue unchecked. In particular, the strategic use of secrecy is illustrated most vividly in the recent “discovery” that there is an epidemic of sexual harassment. Secrecy can act not only to undermine the general public interest in open judicial proceedings, but also to undermine the interest in identifying and tackling patterns of systemic misconduct. I take seriously the arguments on both sides of these issues, and I believe this is a moment where it is important to have an honest and in-depth discussion of the competing considerations.
As I have expressed on other occasions, I expect that practitioners before our court have a great many ideas of what works and what doesn’t, what ought to be preserved and what needs to change (see Rolando Acosta, “Where Judges and Lawyers Can Share Concerns and Ideas,” NYLJ, Sept. 10, 2015). I look forward to continuing the conversation. And I ask the bar (and my colleagues on the bench) to consider an increased emphasis on candor, both in terms of dealing honestly with cases, facts, and arguments, and in respect to the role of transparency in the overall administration of justice. Frank discourse on all issues, no matter how challenging or controversial, is critical if we are to maintain a functioning judiciary that inspires public confidence in its legitimacy.