‘Realist’ or ‘formalist’: Part 1

MOSKOVITZ ON APPEALS

I’ve long been a fan of Richard Posner, judge (and former chief judge) of the 7th U.S. Circuit Court of Appeals in Chicago. Here’s why.

I’m an appellate lawyer. The key to winning appeals is to get into the minds of appellate judges. This is quite difficult, in part because judges don’t say much about how they think about cases. Many “just do it” without much introspection. Others have some idea about what they do, but don’t want to talk about it. And many think they are doing one thing but are actually doing another. Reading their opinions helps, but not as much as you might suppose, because opinions are often written largely by research assistants. I learn how judges think mostly by inference and intuition: experience handling cases, talking to judges, watching them during oral argument — and by serving as a “judge” myself, during moot courts I hold for lawyers.

Posner is a breath of fresh air. He actually thinks about how he thinks. And about how other judges think. And then he writes about it, extensively and candidly. I’ve pored over his book “Reflections On Judging” for hours. Posner notes that “Lawyers find it difficult to get inside the head of an appellate judge,” and his book provides a peek into at least one judge’s thinking.

Posner considers himself a “realist” when he decides a case. And he minces no words in explaining what this means. After he recently announced his retirement from judging, he gave an “exit interview” to Adam Liptak of the New York Times. Liptak reported:

“He called his approach to judging pragmatic. His critics called it lawless. ‘I pay very little attention to legal rules, statutes, constitutional provisions,’ Judge Posner said. ‘A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?’

“The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. ‘And the answer is that’s actually rarely the case,’ he said. ‘When you have a Supreme Court case or something similar, they’re often extremely easy to get around.’”

Posner contrasted his approach with what he called the “formalist” view: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”

That’s the position that Chief Justice John Roberts took at his Senate confirmation hearing. “I’m merely an umpire, calling balls and strikes. Someone else decides the parameters of the strike zone, and I just apply it to each pitch.” Is that a fair description of what Roberts actually does on the bench? I don’t think so, and that’s not just because his opinions lean too far to the right for my taste. Prominent lefty Justices like William Douglas and William Brennan also would have made lousy umpires.

So let’s get back to me, the appellate lawyer. How does all this help me win appeals? Do I pitch my briefs to the realists or to the formalists? Or neither, or both?

I do both. I assume that most judges draw on both realist and formalist approaches. They want their opinions to appear grounded in some force outside the judiciary: the Constitution, a statute or ordinance, rules of interpretation or common law handed down by their judicial ancestors, and, of course, “precedent.” But they also want to “do justice,” so they will, on occasion, spin the precedent in a way that supports the most just result, as they see it. Justice Brennan is reputed to have said, “I never met a case I couldn’t distinguish.”

It’s important to judges that their written opinions appear formalist. Appellate judges know that they are somewhat of an anomaly in a democracy. They are elected, but only “sort of,” and they are supposed to be “independent” of the electorate and their lawmakers and law-enforcers. So they need to appear as if they are only implementing rules made by “higher” authorities. Their opinions read formalist, while often concealing the realist impetus behind them.

Most lawyers’ briefs seem to say “Judge, you must rule in my favor, because of precedent.” This is the formalist view. My approach is more realist. To win, I need to make the judge want to rule in my favor. So I bring out the justice underlying the precedent.

For example, suppose my sole argument for reversal is a claim that the trial court erroneously sustained an objection to certain evidence as hearsay. My client’s trial lawyer argued that the evidence came within an exception to the rule barring hearsay — perhaps the business records exception. That exception has certain requirements, e.g., that the record be regularly kept, that it be made soon after the incident recorded, etc. Most appellate briefs would simply go through those elements and apply each one to the facts of the case. That’s the “formalist” approach.

I do that, but I also go deeper, bringing out the justice behind the rules. I might start with: Why have a trial? So the judgment can be based on historically true facts. But how do we make sure that the evidence leads the fact-finder to historically true facts? By requiring each witness to testify orally and under oath in front of the fact-finder — and by subjecting him to cross-examination. But hearsay — an out-of-court statement — evades the cross-examination requirement, and thereby threatens the accuracy of the fact-finder’s verdict. Sometimes, however, the circumstances under which the hearsay was given are so reliable that they are just as good as cross-examination. This is why we allow certain exceptions, including the business records exception. That exception has specific requirements, all of which are designed to ensure reliability as good as cross-examination. And now let’s see if the facts show that this hearsay was given under such circumstances.

I back up my statements about the purpose of the hearsay rule, the purpose of the business records exception, etc. with statutes, cases, and treatises. I hope my policy arguments are persuasive on their own merits, but I make them stronger by showing that it’s not just some biased advocate (me) pushing them, but also some more powerful and prestigious institutions — like legislatures and courts. And, on occasion, some distinguished neutral commentators, like Wigmore on Evidence or the Restatement of Torts.

Note that I’m using those authorities to support my policy arguments, and not as “law that binds the court.” This is a crucial distinction. Judges don’t like being told that the must do such and such. They’d rather hear: “This is the right thing to do, and you won’t be seen as a lone ranger if you do it.”

I see very few briefs that take this approach. Most lawyers are strictly formalist. “Here’s the law, judge. Just apply it as it’s written, and it will lead to a victory for my client.” Most briefs are preoccupied with invoking cases and distinguishing cases. They say little about the justice behind the cases — or the justice arguments independent of the cases.

Why? I’ll explore that in my next column.