A Different Box – Part II

You’ve heard the term “comparative law.” What does it mean?

Essentially, you take a body of law or procedure of one country (or tribe), lay it down next to that of another country, and explore the similarities and differences. It can be quite fascinating – especially when you delve into the cultural causes that underlie the differences.

I got into it after I’d been teaching criminal procedure for several years, then happened to take a trip to several European countries to learn about their ‘inquisitorial’ (or ‘continental’) method of trying criminal cases.

When I got back, I read more their system, which was quite interesting. But what was even more interesting was the light it shed on unexamined aspects of our own system. For example, we exalt the right to jury trial. But why? Europeans don’t use juries much, and no one has accused them of coming to the wrong result any more than we do.

I then wrote an article (i) that played off a mind game. I imagined that the prosecution of O.J. Simpson had taken place under the inquisitorial system.

Let’s play a similar mind game, about the appellate process.

Here’s the way we Americans handle appeals. Lawyers write extensive briefs (14,000 words max, usually), spelling out in detail the facts, the law, and the arguments. They put a lot of time into this – often more than 100 hours. Then comes their only face time with the appellate judges: at oral argument. Appellate courts rarely allow more than 30 minutes per side for oral argument. Some federal circuits allow as little as 7 minutes – and decide many cases with no oral argument. Then we wait for the court’s decision. It’s often a long wait, sometimes a year or more. But the end product is usually quite thorough: a lengthy written opinion that sets out the facts in detail, explores the precedent cases extensively, and purports to apply established law to the facts. Occasionally, but not often, the opinion is accompanied by a written concurrence or dissent, which is also quite thorough. Some of these decisions are published, to serve as binding precedent.

This is the American ‘box.’ Let’s think ‘outside the box’ for a moment. Let’s imagine a very different way of doing it.

Let’s imagine that the lawyers’ briefs are very short, about five pages or so. These briefs do no more than summarize the facts and list some precedent cases that might be relevant – with no argument. The appellate court schedules the oral argument fairly quickly. Once the oral argument begins, however, it goes on until each judge says that he or she is ready to decide the case. This can take many hours, sometimes several days. And when the judge is ready to announce, that’s what the judge does – right then and there, from the bench orally, out loud. A clerk might scribble down what the judges say, type it up, and publish it.

‘Absurd,’ you say. ‘What a waste of time! And the final product could not be as well-reasoned and well-written as an opinion carefully written by the judges over a period of months. Who would want such a system?’

Our forefathers, the Brits, that’s who. That’s pretty much how they’ve always done it and how they still do it. Britannia no longer rules the waves, but their justice system still serves as the model for their former colonies, i.e., for much of the world. Maybe we can learn something from them.

The British system of appellate review is based on the principle of ‘orality.’ To British lawyers and clients, it’s important to see justice being created – right in front of them. They want to engage with the judges at leisure, to watch and listen to them think their way through a problem, and hear the judges’ own words when they reach a decision – unfiltered by law clerks.

‘Sounds nice,’ you say, ‘but oral argument of that length would take too much time. Our caseloads are too big for that.’

But how long does it now take an American court to handle an appeal from beginning to end? One would need to add up the number of judicial hours usually spent on each of these tasks:

1. Reading the briefs on appeal – at least 3, not counting motions and the occasional amicus brief.
2. Reviewing the record.
3. Performing legal research.
4. Drafting an opinion.
5. Hearing oral argument. (This sequence is surprising but correct, at least in California courts: opinions are drafted before oral argument!)
6. Revising the draft opinion.

And, to get the full picture of the cost, you would need to keep a separate track of the time spent on these tasks by the judges’ research attorneys.

The Brits skip Step #1 (except for a few minutes scanning the skimpy 5-pagers), and handle Steps #2 through #6 during the oral argument. That’s right. I’ve actually seen British appellate judges perform legal research during the argument. They arise from their chairs, go over to the bookshelf, extract a musty tome, and start reading a case or treatise – right in the middle of oral argument.

Even if all this takes a couple of days or so, it might take less judicial time than that expended on many of our American appeals.

So time might not be the determinative consideration. And even if there are some marginal time differences, is efficiency the only thing that matters? An appellate system should serve three important goals: a just result for the parties, establishing sound precedents, and showing the public that our judicial system is fair (the ‘appearance’ of justice).

If I haven’t shocked you enough with this outrageous suggestion, tune in to a future blog, where I’ll explore which system best serves these three goals.

(i) See Moskovitz, The O.J. Inquisition: A United States Encounter With Continental Criminal Justice, 28 Vanderbilt Journal of Transnational Law 1121 (1995).

by M.A.T. Legal Director Myron Moskovitz