From legal formalist to legal realist

MOSKOVITZ ON APPEALS

Recently, I've been ruminating on my career as an appellate lawyer. Over the years, I've changed my approach -- a lot.

I began as a "legal formalist," but at some point I turned into more of a "legal realist."

What do these terms mean, and why does it matter?

Well, here's why it matters to me: An appellate advocate's goal is to persuade appellate judges. Therefore, I need to have some idea of what makes appellate judges tick.

I seek this understanding by several means.

I read their opinions, of course, but those tend to follow a formal structure that does not always reveal the true motivation for the bottom line -- affirmance or reversal. (And the opinions might be written by law clerks, who tend to be "formalist," rather than by the Justices.)

I get more insights from listening to what judges say at oral arguments -- both in my cases and in other cases I watch being argued.

And, of course, I talk to them. I have four former appellate judges on my team, and their insights are extremely useful.

I also read what judges write about themselves and their colleagues. The best of these, in my view, is former Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals. Posner is a prolific writer on many topics, but I find his "Reflections On Judging" the most useful.

Judge Posner sums up "legal formalism" this way:

"The character of legal formalism can be captured in such slogans as 'the law made me do it' or 'the law is its own thing'. The law as seen from the formalist perspective is a compendium of texts, like the Bible, and the task of the judge or other legal analyst is to discern and apply the internal logic of the compendium. He is an interpreter, indifferent or nearly so to the consequences of his interpretations in the real world. He is not responsible for those consequences; if they are untoward, the responsibility for altering them through a change in law falls to the 'political branches.'"

"Legal realism" is "harder to describe," but he gives it a try anyway: "The realist places emphasis on the consequences of judicial rulings."

For the record, Posner calls himself "a pragmatic judge," which seems to be closer to realist than formalist.

I started out as a formalist. I structured my briefs as a series of logical syllogisms:

1. Here's the facts.

2. Here's the law.

3. Here's how I apply #2 to #1.

4. The result: I win, because -- as Posner would put it -- "the law makes you do it."

I'd spend a lot of time on #2 -- discussing cases, analyzing them, distinguishing them -- all on the assumption that this really mattered, because the Justices would decide my case based on the prior cases.

Why was I such a formalist? I didn't give it much thought until I read what Posner had to say about appellate law clerks. Before handling appeals, I had served as law clerk for a year, for California Supreme Court Justice Ray Peters.

Posner notes that most appellate opinions are drafted by law clerks, and most law clerks are formalists -- mainly because most of them are recent law graduates, and formalism is "what they learned in law school. And what they learned was the conventional sort of legal analysis that consists of fitting the facts of a case to a legal rule, usually found in a statute or a constitutional provision or in a judicial opinion."

Quite so. Law professors teach students to "follow the law." To read statutes with a microscope. To parse the language of cases and to distinguish them. But above all: to find the holding, follow it, and apply it. True, the prof might occasionally ponder the policy implications of this or that reading. But at exam time, when there's money on the table, the student must "apply the law".

It would never have occurred to me or my classmates that we might get a better grade by writing in our bluebooks something like, "The cases dictate a ruling for A, but that seems so unfair that I predict the court will rule for B." In real life, however, that's exactly what can happen.

I should have known this earlier, through my year of clerking for Justice Peters.

I drafted opinions in the customary formalistic style -- partly, I suppose, because I (like most law clerks) had served on my law school's law review. This makes the problem worse. Posner quotes another source who says, "law clerks may write well but -- in speaking for another -- they employ a safely formulaic mode usually learned in editing a law review."

Justice Peters seemed to like my draft opinions, and he signed them. But here's what I should have taken more seriously: when I sat with him in his office and discussed my drafts, he hardly ever discussed "the law." Precedent cases almost never came up. What mattered to him was "doing the right thing." I should have paid more attention to this.

"Well," you might say, "He was a Supreme Court Justice. They aren't bound by precedent (except U.S. Supreme Court cases). They can do whatever the hell they want. But most appellate cases are decided by Court of Appeal judges, and they are confined by precedent cases."

Really? At bottom, a judge is a judge. When a judge believes that a certain result is the fair one, he or she will often find a way to reach it. Of course, a lot goes into what is "fair." It involves more than a fair outcome for a particular party. Respect for trial judges and the Legislature come into play too. But when a balance of all those interests adds up to some particular desired result, an appellate judge might bend the words of a statute a bit or reinterpret some dicta to justify that result. As Posner might say, pragmatism usually trumps formalism.

It took me quite a while to figure this out. My "formalist" briefs must have been pretty good, because I usually won. But I think it helped that I was then working for California Rural Legal Assistance or the National Housing Law Project, so I was usually on the side of the angels, representing farmworkers, low-income tenants, and similar clients -- often against big growers and landlords. Not every judge was sympathetic, of course, but there were enough "enlightened" judges on the California and U.S. Supreme Courts to give me victories in cases establishing the implied warranty of habitability, the rights of cities to regulate rents, and the rights of welfare applicants.

But occasionally I would lose one -- even when I was sure that I was "right on the law." This happened more often when I started representing regular clients who were not on the side of the angels. These were ordinary humans with ordinary foibles. They protested too much at homeowners' association meetings, they crossed an ethical line in business dealings, or they dipped into the corporate cookie jar a bit too much. The sympathy I had garnered earlier wasn't there -- and often the sympathy was with the other side. And judges would sometimes give a gentle twist to precedent cases in order to rule against my clients. The formalist approach simply wasn't good enough to give me the victories I wanted.

That's when I turned into a legal realist. I began to write briefs the way I do now. I look for a theme of justice, based on the facts of the case and policy considerations. Often these policies are incorporated into statutes or case law, and I'd invoke them to support the policies I am urging. And I'd put my client's misdeeds up front and deal with them as well as the record allowed.

I do the necessary formalist work too, of course, to help the judges rule for my client with an opinion that looks like they are just following the law -- which is what they prefer to project. As Posner says, "the formalist opinion is in the ascendant." He sees it as "a defensive reaction to criticisms of the freewheeling style and liberal results of the decisions of the Supreme Court in the 1960s, and an attempt to camouflage the continued judicial activism of both Left and Right."

Posner might see evidence of this in the recent dispute between Chief Justice Roberts and President Trump. Trump said that the outcome of important cases might be predicted by knowing which president appointed the judges. Roberts disagreed, opining that federal judges are "neither Democrat nor Republican" -- consistent with his insistence that judges are mere umpires calling balls and strikes, with no interest in who wins the game. A rare moment, in my opinion: Trump is right. And he trumped the Chief Justice of the United States.

The bottom line question is this, of course: Does my shift to legal realism help me win? There's no sure way to tell, because I don't submit both types of briefs in the same case to the same court. But I think so. I've had several cases where my insight into what really might motivate the judges controlled what I focused on and how I presented it, and I won. And I've had cases where the other side had a stronger justice argument than I did, and I lost -- even though my "formalist" presentation was pretty good.

So I think I'll stick with the realist approach.