Monday, July 27, 2009

Legal Reasoning and Legal Reality

I want to write about legal reasoning and the realpolitik of courts and about oral argument.

Defending People's Mark Bennett is pushing a discussion about the Boucher case which involves a grand jury subpoena and the effort to get Boucher to unlock the z drive on his computer and show the grand jury that he has child porn on that drive. It's an interesting case on the merits and might prove important.

I'm not interested, here, in talking about the Boucher case itself. (You can learn about it - and if you've got something incriminating on a computer you probably should learn about it, from Bennett's site, where you can also find, in the comments, my take on it.)

What does interest me here is the underlying jurisprudential question Bennett raises: How do judges decide things. I'm not talking here about how they decide who to believe (the cop in a criminal case, for instance, just because he's a cop) or principles of constitutional interpretation. This is both less grandiose and, on a day-to-day basis for practicing lawyers and their clients probably far more important.

Here's the model of a legal argument presented in the form of a brief oral argument on a motion before a trial judge - and the sort that too often shows up in law school textbooks and, phrased differently, on law school exams.
ATTORNEY A: Your Honor, this case is just like Humpty v. Dumpty. My client's leg is shattered and cannot be put together again. Therefore the defendant must pay for the loss of my client's leg.

ATTORNEY B: Your Honor, that's just silly. This case is nothing like Humpty. First, we're talking a leg, not a whole body. In fact, this case is exactly like and controlled by the outcome in Jigsaw v. Puzzle. The leg is broken, but any competent surgeon can put the pieces in order and bind them together.

ATTORNEY A: Body, schmoddy. The thing is shattered and can't be repaired, which is the essence of Humpty.

ATTORNEY B: No, no, no. Humpty is about total loss. This is Jigsaw.
The argument, you see, isn't ordinarily about whether Humpty or Jigsaw correctly states the law. It's about whether this broken leg is more like the story of Humpty Dumpty or more like a jigsaw puzzle, knowing it's not actually all that much like either. It's about analogies.

And when we argue to the court that it should do this or that, what we're mostly doing is finding the analogy we like and explaining that it's the one the court should think is closest to the case at hand, not the analogy the prosecutor is pointing to. But it's complicated because the analogy is not the thing itself, and you can usually find something for just about any point.

[In this way, law is to be distinguished from, say, Swedish society as described in the crime fiction of Maj Sjowal and Per Wahloo. In one of their books (I'm doing this from memory and don't have the book before me, so I may have a detail wrong), a character explains that in Sweden "all things are either required or forbidden." In the law, by contrast, and as a consequence of the sheer mass of case law out there, it's not much of an exaggeration to say that all things are both required and forbidden. You can, that is, find authority to support almost any argument if you can just figure out how to shoehorn your facts into the right analogy.]

A couple of hours before Bennett posted about Boucher yesterday, a friend and I were speaking about oral argument. He observed that if a case is well briefed and if the judges read the briefs before argument (neither a sure thing, but it was in the case he had and the court where he most practices), the judges have already made up their minds before oral argument, so why not waive it. You're more likely to dig a hole or say something stupid or give the prosecutor a chance to save his case than to benefit from argument, he said.

Of course, the first rule is that there are no rules. Everything depends on the particular case and the particular court. But for reasons I've never fully understood, appellate judges really believe oral argument matters. As them and they'll say so. Poll them and the results are overwhelming. Typically, what you hear is that argument makes a difference in something like 20% of the cases. I've always found that figure astounding, but as another appellate lawyer once speculated, "Maybe 20% of the time the briefs are so bad that the judges don't have any idea what the case is about until oral argument."

Actually, I think it means something more like, 20% of the time an individual judge finds that oral argument helps clarify the decision that judge has already reached. It's a confirmatory 20%, not an outcome changing 20%. And it's probably easier to lose a case during argument (by saying something really stupid) than to win one.

Here's what Justice Scalia and Bryan Garner have to say in Making Your Case: The Art of Persuading Judges:
Many lawyers view oral argument as just a formality, especially in courts that make a practice of reading th briefs in advance. Sure it gives counsel a chance to show off before the client. But as far as affecting the outcome is concerned, what can 20 minutes or half an hour of oral argument add to what the judge has already learned from reading a few hundred pages of briefs, underlining significant passages and annotating the margins?

This skepticism has proved false in every study of judicial behavior we know. Does oral argument change a well-prepared judge's mind? Rarely. What often happens, though, is that the judge is undecided at the time of oral argument (the case is a close one), and oral argument makes the difference. it makes the difference because it provides information perspective that the briefs don't and can't contain.
Well, maybe. Scalia operates in a pretty rarified world - one where judges may (do they, really?) actually read, underline, and annotate hundreds of pages of briefs before argument. And his is a world where the Court decides few cases, and those raising issues that have often split lower courts. Most of what we do in the appellate courts isn't like that. Mostly we're arguing for some sort of error-correction. We get 30 pages to the side for the brief. No amicus in all likelihood. And the case is likely something close to a sure loser.

That much said, the process is the same. Humpty is like this case. No it isn't, Jigsaw is.

Except that the court has probably already decided whether it's Humpty or Jigsaw that controls. And I'm not likely to get far in changing their mind unless I have some fresh approach or focus or something. And that goes to the underlying question I started with: How does the judge decide which analogy to buy?

There are two possibilities. The judge can reason forward or backwards. If the judge reasons forward (which is what all judges claim to do and most believe they do), it looks at the facts and studies the law and determines, ultimately, whether this is more like A or like B. If the judge reasons backwards (which is what a very large percentage of judges do much of the time - often subconsciously, I think), the judge looks at the facts and decides what the right outcome will be and then concludes that of course the case is more like A or like B.

If that's so, if my real world understanding of how judges decide (or commonly decide or something) is so, then my job as appellate advocate is complicated. Because while I have to make the argument going forward, I have to convince the judge going backward.
You want, Your Honor, to find for my client. And here's the case law/legal reasoning that lets you do it.
And that, when you get down to it, is why I go to oral argument.

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