ABA Journal

The top two frauds a court system can pull is the “unpublished opinion”.

This is a way to destroy one litigant and cover up the proceedings that led to the destruction. Hence, this judicial scheme adds opacity to the legal process and the general public is unaware of shenanigans in the courtroom or on appeal.

The “unpublished opinion” surfaces in federally preempted areas where the state gets matching funds. So decisions that keep a parent incarcerated for non payment of child support are “unpublished” while the procedure used to calculate the support amount is kept secret. The same goes for erroneous psychological evidence in child abuse cases.

The decisions of totally inept judges are also marked “unpublished” because they are “unpublishable”.

I heard an argument in favor of opacity. This is intended to keep today’s children from growing up, reading a devastating opinion about a mother and father and then committing suicide.

My response that if this is happening, we need a new legal system and we need to hold court appointed expert witnesses accountable for their drivel spouted out in court.

The second biggest fraud is the santization of the record.

By Peter C. Lomtevas on 2010 03 11, 6:54 am CDT

Judge Matz is a fool. 

How dare he issue any decisions at all which are not definitive or exhaustive.  Is the admission that he is issuing such decisions an admission that some litigants are getting the shaft based upon a cursory and perhaps incorrect reading of the law?  And if it is correct, why isn’t it definitive.

Judge Matz ... if your decisions are not definitive, if they are not of the caliber which merit publication (even if they are not published), if they are not sufficiently authoritative to be included in a developing jurisprudence on the issues involved, then you should remove yourself from the bench.

By Time on 2010 03 11, 9:37 am CDT

Since others can still disseminate Matz’s orders, the request is impractical, Cleveland says. It’s also inappropriate to try to create a secret body of law…

Unpublished opinions are often the only indication a practitioner has regarding a judge’s politics, former practice background, or record of ruling on similar issues. The judge’s ruling won’t keep major firms from keeping databases of old opinions and orders, which may ultimately put smaller or newer practitioners who come before his court at a disadvantage.

By BMF on 2010 03 11, 11:20 am CDT

There is ABSOLUTELY nothing unusual about Judge Matz’s request.  As a former law clerk, I can attest that Federal Judges do it ALL the time.  Judges started adding the language more frequently when Westlaw changed its publishing policy a while back and decided that it would publish whatever it deemed relevant and not merely what the court sent in for publication.  Interestingly, other courts have learned how to draft and docket their “opinions” such that they are not picked up by Westlaw (i.e., oral opinions; “orders”).  Inclusion of the request is a signal to not only the audience that the analysis may not apply in a subsequent case but all to Westlaw that the decision may not be relevant for publication in a reporter in accordance with the standards advocated by the judiciary. 

While federal law requires courts to make their opinions available to the public (i.e., PACER; court’s website), they do not have to be “published” in a reporter or through Westlaw/Lexis.

By W.E.M on 2010 03 11, 11:24 am CDT

Unpublished federal opinions, orders and other dispositions remain citable as authority with variations on a circuit-by-circuit basis regardless of any judicial equivalent of a Bushian “signing statement” within it.  For example, the Ninth Circuit’s L.R. 32.1 flatly bars a district court from prohibiting or restricting the citation of “federal judicial opinions, orders, judgments or other written dispositions” that have been designated as “unpublished . . . or the like” and were “issued on or after January 1, 2007.” 

All this indicates that Judge Matz is blowing smoke, and that Westlaw and Lexis are free to disregard his wishes.

By AndytheLawyer on 2010 03 11, 12:10 pm CDT

Maybe Judge Matz should just conclude such opinions/orders by adding: 

The analysis in this order was not necessarily definitive or exhaustive.  The order should not be viewed as something the Court intends to contribute to developing jurisprudence,”

By old lawyer on 2010 03 11, 12:22 pm CDT

There is no reason why any judge should be able to designate a decision as unpublished or published. Everything they produce should be published and citable.

By HGD on 2010 03 11, 2:19 pm CDT

Recall the statement that “The King Can Do No Wrong”?  It has morphed into “The Judge Can Do No Wrong.”

As Justice Louis Brandeis stated:  “Sunlight is the best disenfectant.”  And as Thomas Jeffereson stated:  “It is error alone which needs the support of government.  Truth can stand by itself.”

By veritas on 2010 03 11, 2:49 pm CDT

Every time a judge belches there should be full and open review searchable by anyone.

By Peter C. Lomtevas on 2010 03 11, 4:11 pm CDT

Comment removed by moderator.

By RMacLaverty on 2010 03 12, 12:56 am CDT

my thoughts on the article were that maybe the Judge requested it not be published so that he would get the publicity (reverse psychology).  For some people bad publicity is better than none.

By another lawyer on 2010 03 12, 7:27 am CDT

W.E.M. said “There is ABSOLUTELY nothing unusual about Judge Matz’s request.  As a former law clerk, I can attest that Federal Judges do it ALL the time.”  Please tell me you are not arguing that this makes it right.

By tell_the_truth on 2010 03 12, 8:04 am CDT

As I read the story, the Judge did not say “Don’t print this . . . .”  My reaction is that the sentence quoted in the story, alone, on its face, does NOT prohibit publication by Westlaw or Lexis—but simply states that the Court does not intend that it be published.  Thus—if Westlaw or Lexis should decide to publish it anyway, seems to me they likely have NOT violated any enforceable court order; and if other research engines can publish it, or are publishing it, then it also seems to me that equity would be on the side of Westlaw and Lexis in any action to “enforce” the Judge’s stated intent.  However, it’s probably never a real good idea to take a chance on annoying a Judge, whether or not such annoyance is actionable.

By PWH on 2010 03 12, 9:00 am CDT

@13. PWH

Some decisions merit a jurist being subjected to a little annoyance. In my humble opinion, I think a widespread tradition of unprinted judicial decisions such as that suggested by W.E.M. creates an environment susceptible to misjudgments and unaccountability. Annoy judges by publishing their decisions.

The public should have a right to as much openness as possible when it comes to our justice system. As a member of the public, the decisions reached by judges strongly affect on whether I vote for a candidate who had a say in the appointment of those judges. Most people have many misconceptions about the third branch of government until it impacts directly upon their lives. (I apologize to those linguistic purists who disdain the use of the word “impact” as a verb.)

By AuBricker on 2010 03 12, 9:35 am CDT

What Judge Matz is saying (to me at least) is “I did a half-assed job on this and I’d rather my judgment not be subjected to peer review lest it reveal that I did, in fact, do a half-assed job.” I recently had a case in which the judge (Holwell, SDNY) issued the most exhaustive legal analysis ever written in a legal opinion on the issue, but cautioned that he reached his conclusion “dubitante”. He did not ask that his work not be published but, rather, took a much higher road, cautioning that he doubted the correctness of his ruling (despite the very serious work he put into it). In a hard, close case, it is much better to say “I tried my best, and it is still a close call” than to say “I’ll punt, and hope no one sees it.”

By John Mitchell on 2010 03 12, 9:53 am CDT

Clearly this is a Judge who is lazy, self serving and/or has no intention of applying the law and interpreting the constitution.  Why are these judges being appointed or voted in?  I guess for the same reason Obama is in office.  It is a sad state this country is in!

By Tired of Lazy Judges on 2010 03 12, 10:58 am CDT

Decisions are unpublished most often because they contribute in no way to developing jurisprudence, as accurately stated by the judge’s clerk’s comments.  I have written, or ghost-written, numerous unpublished orders.  Often, the orders are written succinctly to address the issues raised by the parties and are controlled entirely by existing law.  Hence, the decision is for the parties only (which does not require publication) and not to guide future litigants (which would justify publication).  They are not unpublished to cover up for sloppy research or poor reasoning by the judge (or clerk!).  In fact, the reasoning in these cases is often more sound for precisely this reason.  There is little room to deviate from existing law to allow for a judge’s personal opinions or biases and resolution of the appeal does not require an extension of the law and its accompanying policy cosiderations and balancing tests. 

A significant problem with common law jurisprudence is the proliferation of published opinions that in turn leads to an unmanageable body of law that is difficult to naviagate and hardly consistent.  For this reason, unpublished opinions are invaluable.  This is best said in the principle that court’s ought not to decide any issue that need not be decided in order to resolve the appeal.  The idea is also expressed in the principle that courts should not decide constitutional issues unless necessary.  The ultimate point is that the law becomes less predictable, and hence less helpful, the more it is interpreted by the courts.

The notion that an unpublished order is a “fraud,” as noted by the first comment, is silly.  The parties obtain copies of the unpublished order, so it is not as if they are unaware of the resolution of their appeal and the reasoning of the court.

By lawclerk01 on 2010 03 12, 11:24 am CDT

Totally agree with AndytheLawyer, Old Lawyer, and others.  This is a lame move by the judge.  I’m very glad Westlaw and Lexis are ignoring his request.

If any of you feels you haven’t wasted enough time on this story yet, there is a colorful if baffling website dedicated to denouncing Judge Matz at killercop.com (although not for attempting to keep his opinions unpublished, at least as best I can tell).

By Working Mom on 2010 03 12, 11:28 am CDT

Lawclerk01:
“The ultimate point is that the law becomes less predictable, and hence less helpful, the more it is interpreted by the courts.”

Actually, that is not the point of a common law system at all.  I hope you learn a lot more in your tenure as a law clerk.

A few years ago, I participated in a training for lawyers in a developing nation who were trying to promote judicial independence.  One of their biggest complaints was that judicial opinions were never published, so it was impossible to tell how any particular case was resolved.  Because of the lack of transparency, many cases were “decided” by payments or threats from various organized crime elements.

As others have posted above, the current (and laudable) trend is toward more openness in publication of opinions, not less.

By Working Mom on 2010 03 12, 11:39 am CDT

Let’s also not forget the right of the American Public to have access to the written opinions of the judges whose salaries are paid for the taxpayers.

By IPTHEREFOREIAM on 2010 03 12, 11:49 am CDT

I disagree.  The law itself is meant as a guide for decision-making.  For example, contract law helps guide parties when they draft a contract.  If the law is settled that a particular type of contract provision is unenforceable, that acts as a guide and tells a party to not include that provision in their contract because, if challenged, a court will strike it down. 

The point of my post was that it is not helpful to anyone to have every single judge in the judiciary, state or federal, district or appellate, interpreting the confrontation clause of the federal constitution.  You inevitably get absurd interpretations that are nevertheless controlling law.  In the criminal context, those decisions bear on a person’s liberty.  In civil, they can cost you alot of cash.  Unpublished opinions keep a check on “outliers” and allow maintenance of uniformity in the law.

By lawclerk01 on 2010 03 12, 11:50 am CDT

#16—The public doesn’t vote federal judges in.  Or out.  Back to middle school civics class with you.

By AndytheLawyer on 2010 03 12, 11:52 am CDT

I always wondered why you would ever put a case as unpublished.  I had an appeal that was unpublished and always wondered why the Judge’s did that.  I though it could have been that neither my brief nor the pro-se respondent were terribly original and the decision didnt even get to the actual issue, because it was decided that my client had received process thus eliminating most of the issues.  Any one know why this process is used?

By Jon on 2010 03 12, 11:52 am CDT

John Mitchell posted:  “What Judge Matz is saying (to me at least) is “I did a half-assed job on this and I’d rather my judgment not be subjected to peer review lest it reveal that I did, in fact, do a half-assed job.” I recently had a case in which the judge (Holwell, SDNY) issued the most exhaustive legal analysis ever written in a legal opinion on the issue, but cautioned that he reached his conclusion “dubitante”. He did not ask that his work not be published but, rather, took a much higher road, cautioning that he doubted the correctness of his ruling (despite the very serious work he put into it). In a hard, close case, it is much better to say ‘I tried my best, and it is still a close call’ than to say ‘I’ll punt, and hope no one sees it.’ “

To Mr. Mitchell I say Bravo, sir!  [And triple Bravo to Judge Holwell (sic) of SDNY!]

By L. Hamman on 2010 03 12, 11:59 am CDT

Judges cannot—and should not—always write for publication.  When an opinion is intended to serve as precedent, it must describe the record in sufficient detail to allow those who are NOT involved in the case to understand the court’s decision-making process.  That takes an ENORMOUS amount of work, which confers no benefit upon anyone if the decision does not contribute to the development of jurisprudence (i.e., either address a novel issue, or choose between competing lines of cases and explain why).  THERE ARE NOT ENOUGH JUDGES, AND NOT ENOUGH TIME, FOR THAT.  Any of you who holds a contrary view must not mind waiting for decisions and trial dates.  Maybe your clients mind, though, if you are billing them monthly to “litigate”.

By David from San Diego on 2010 03 12, 12:07 pm CDT

“The notion that an unpublished order is a “fraud,” as noted by the first comment, is silly.  The parties obtain copies of the unpublished order, so it is not as if they are unaware of the resolution of their appeal and the reasoning of the court. “

Let’s take for example a real life case I defended in the Eastern District of New York. Two kids ended up in New York City and their mother in England retained Jones Day on a pro bono basis for a return under the Hague Convention for International Child Abduction.

The judge precluded my rebuttal expert five days prior to trial because he could not rebut psychological testing because his practice acts in the states where he is licensed do not specify that he is allowed to administer psychological tests. If he cannot administer them, he cannot rebut them.

This would be the perfect case for an unpublished opinion. One side overpowered the other by a last minute reading of a foreign jurisdiction’s psychological practice act.

In an unpublished opinion, there is no need to discuss due process or the applicability of Frye or Daubert. No one will be directed via search to the actual case file and the transcripts of the Jones Day expert who was licensed to administer psychological testing and how he administered those tests.

I’ll keep the outcome of this case secret. Look it up.

This example, if unpublished, would deprive other counsel in the preparation of similar cases. It would deny fuel for any future impeachments and sanctions against a bench that reaches outside its judicial confines and interprets mental health licensure and credentialing.

Giving copies to the litigants is cute. I liked that.

By Peter C. Lomtevas on 2010 03 12, 12:34 pm CDT

lawclerk01:  “You inevitably get absurd interpretations that are nevertheless controlling law.  In the criminal context, those decisions bear on a person’s liberty.  In civil, they can cost you alot of cash.  Unpublished opinions keep a check on “outliers” and allow maintenance of uniformity in the law.”

Practicing lawyers are, or should be, smart enough to detect outliers.  And if a judge’s opinions are based on “absurd interpretations,” I want to know about it. 

David from SD:  “Judges cannot—and should not—always write for publication.  When an opinion is intended to serve as precedent, it must describe the record in sufficient detail to allow those who are NOT involved in the case to understand the court’s decision-making process.”

The courts in many states routinely issue published opinions that include few or no facts to explain the court’s decision-making process (New York, I’m talking to you). 

Again, lawyers can and routinely do manage to sort through incomplete, contradictory, conclusory, and poorly-explained case authority to determine what the law is.  That’s our job.  Our public servants do not need to be deciding which cases we should or should not be able to rely upon.  I’ve always found “unpublished decision” policies to be quite patronizing.

By Working Mom on 2010 03 12, 1:27 pm CDT

Maybe I am just naive, but when I first read the decision I thought the judge was making a statement against Westlaw and Lexis.  Perhaps the judge feels that these two behemoths have taken over the field of published opinions and need to move over for other providers that are less expensive and do not require onerous contracts for online research.  Just a thought.

By Diana on 2010 03 12, 1:32 pm CDT

In my jurisdiction the practice of rendering unpublished opinions is topped only by the highest court “de-publishing” an opinion of the intermediate appellate court. My favorite was a case in which I pointed out another intermed case which held exactly the opposite of mine, under very similar facts. The Supremes answer was to affirm and de-publish my opinion. We are now blessed with the option of citing to an unpublished opinion, but only if there is no other law on point in a published opinion, but that raises the question….?  SLC

By hw3 on 2010 03 12, 1:47 pm CDT

Point blank: FEDERAL judges are generally not permitted to advance the publication of ALL of their decisions.  The judiciary has recommended guidelines as to when it would be prudent for a judge to recommend to Westlaw/Lexis that it publish a decision in an official reporter.  The purpose of such “published” decisions is to educate attorneys & pro se litigants—either local or nationally—on a particular point of law or to contribute a different interpretation of a legal issue that the judge concludes is more correct than what has been adopted by other judges.  Some judges can publish only so many rulings on MSJ before they all start sounding the same.  And to have such repeated opinions published, without addition more the legal discussion, does nothing for the bar and clutters up the reporters. 

Unpublished opinions are primarily narrow in scope and far from detailed in the way that a published opinion is drafted.  The assumption is that the litigants are cognizant of all of the events leading up to the ruling without the judge having to go through a complex recitation of the facts and lengthy legal analysis.  This isn’t an issue of laziness; it’s an issue of time and efficiently.

Whether or not a written opinion is published, federal courts nonetheless make such opinions available and searchable to the public via PACER and the court’s websites.  Matter of fact, some federal courts will even send you an email WHENEVER a judge in the district issues a written opinion if you don’t want to take it upon yourself to do the FREE search.  So nothing is “hidden.”

And REGARDLESS of whether you cite to a published or unpublished opinion, absent a law of the case restriction, the judge is not bound by his/her prior decision.

By W.E.M. on 2010 03 12, 1:59 pm CDT

When I search Lexis.com I can choose for instance to search all California cases, All published cases, or All unpublished cases.  While I disagree with the use of unpublished cases, at least I can read them.  There are times that the only case that has the same issues as your case are unpublished and knowing the reasoning for that decision can help you express to the court a similar view if appropriate.

By SBD on 2010 03 12, 2:23 pm CDT

Most lawyers who practice in federal courts don’t much care any more about the “published/nonpublished” distinction because, under controlling Circuit Court rules they’re both citeable.  What matters is the “citeable/non-citeable” distinction.  “Published” v. “Non-published” might have some impact on the opinion’s persuasiveness, but that’s nothing a competent attorney can’t enhance with advocacy.

By AndytheLawyer on 2010 03 12, 2:35 pm CDT

Thank you to lawclerk01, David from San Diego, and W.E.M.—- clearly the voices of reason on here.  They are absolutely right.

By JN on 2010 03 12, 3:13 pm CDT

Working Mom:  PREACH IT, SISTAH!

By L. Hamman on 2010 03 12, 3:56 pm CDT

I have a comment, but I have instructed it not be published.

By erisanation on 2010 03 12, 5:10 pm CDT

#22 - #16 said “or appointed” - back to elementary reading class for you!

By Trent on 2010 03 13, 4:16 am CDT

Tough issue because it is even worse when the courts issue orders and judgments without any opinion at all.  Then no one can figure out why they did it and corruption is much ore likely.  So if we make them write every opinion thoroughly enough to be published, will they then just write no opinions?  What is worse?  Like the other tow branches of government, the judiciary is screwed up - but what is the solution?  How do we make it better as opposed to just complaining?  We do not do anything to vote out congressmen who sell out to big-pharma or big banks and we all know about that, so what is the chance enough know and care enough about the judiciary to do something?

By Trent on 2010 03 13, 4:25 am CDT

Trent is right.

Our society has become so sheepish that we do nothing to keep our government straight.

We even have hoards of pundits who maintain attacks on complainers so that even complaining is not permitted.

By Peter C. Lomtevas on 2010 03 13, 7:38 am CDT

What is amazing is that only Westlaw, Lexis, and Pacer may have these opinions.  When lawyers use them, they are using stuff that may not be available to the public.  What that means is that the public once again is left out of the legal process and it again becomes the exclusive domain of the legal professionals. 

  There should be rules of court that require lawyers and judges who cite to unpublished opinions to supply copies of the entire decisions. 

  Recently, the ABA published an article about the divergence of decisions in EEOC complaints based on a judges sex, and ethnicity.  The results were statistically significant but the articles authors still believe that there is a rule of law? 

  In addition to a court’s rulings, Lexis, Westlaw and Pacer should allow either of the litigants to submit a response that may question an opinion and be in opposition to the judicial opinion.
  Many opinions contain judicial fiction that is used to dismiss actions and possibly to sanction participants.  (I look back at the history of SCOTUS where the court has reversed itself after many years. Think about Brown v Board of Ed and its predecessors. another example would be Bowers v Hardwick, and Lawrence v Texas, or death penalty cases where a mental deficiency existed or age was a factor in determining death sentences.) 

    I looked at a case I had that was decided by SCOTUS, and I lost 9-0 - but the opinion had questionable factual statements.  I was upset by the decision, but even more upset because it reflect errors in facts that protected the judiciary and legal profession. 

    In many actions where a non-attorney is involved, a judge is more likely to favor a lawyer.  There are many reasons for this result.
 
    a.  It is easier for a judge to clear his docket - by using a submission by a lawyer.  Lawyers are good writers and it is just easier for a judge to adopt these writings. 

    b.  A judge may not want to rock the boat!  When there are novel areas of law, it is more likely to be brought by a non-lawyer since they have more to lose in court than members of the legal profession. 

    c.  Lawyers are hesitant to criticize a judge since they may have to appear before that judge and his/her colleagues in the future.    . 

    d. Many of the reasons give in the comments above are ones that question the process and that is something that is critical to our legal system.  that is not what judges want published. 

    e.  Recently, some bar associations have sanctioned members for making comments that were critical to the judiciary or the legal profession.  It is a damper on free speech by those who should be protecting it.

    As an example, I sued a state court judge for failure to properly maintain files.  The federal judge found that the action was frivolous and sanctioned me.  However, I did submit studies and a letter from the Judicial conference of the United States approving imaging projects in Federal courts. 
      The federal judge did not read the electronic submissions - and of course protected the state court judge.  it was not just protecting the state court but the state system of maintaining files that may not work.  Only after being in the system for a long time have I been exposed to :

  a.  Lawyers who fail to send all papers to all parties (purposely.)
  b.  Court files that fail to include documents from earlier judges.
  c.  Misfiling of court files (electronically maintained case files, once filed correctly, are not going to be misfiled after being used.)
    d.  Insure that a party who takes out part of a file don;t destroy the history of an action. 

    I could continue this type of critic but it might be several pages, and it most likely would impact me just as some of my past writings and actions have impacted me.

By ironstone on 2010 03 14, 1:42 am CDT

Why jump on this one guy when the entire Second Circuit takes pleasure in having a separate secret body of unpublished law in which people without lawyers have less rights that Russian peasants?

By Ronin Amano on 2010 03 14, 3:25 pm CDT

The ninth circuit just upheld that judges can dismiss cases in which they’re named as a defendant, in an unpublished opinion. The case involves the abduction of a 70 year old man, in a political terrorist attack.

By joebanana on 2010 03 14, 8:37 pm CDT

Peter Lomtevis, imagine how they would have treated you or your client if you pled the Antipeonage Act and that not only do they not have the right to make your client a slave based on any debt or obligation, 42 U.S.C. 1994, but that it is a FELONY to do so, 18 U.S.C. 1581!

For further details please see www.antipeonage.0catch.com

And yes, both Washington and the federal appellate courts preferred to bury my claims with unpublished deciaions (sometimes quite irrational with Alice in Wonderland logic) that the supreme courts could ignore by denying review and certiorari.

By Roger Knight on 2010 03 14, 8:51 pm CDT

#39—There’s no institutional bias against pro pers.  Go read Gideon v. Wainwright.  But there is a bias against people, licensed or not, that don’t know what the heck they’re doing.  In most courts that ratio is expnentially higher for non-lawyers than for lawyers.

By AndytheLawyer on 2010 03 15, 7:34 am CDT

Any law written as so the average citizen needs a lawyer to interpret it, is a void law. If a law can’t be written in plain English, it shouldn’t be written. We have too many stupid laws anyway. And too many corrupt judges. It’s been proven too many times that this system is dysfunctional.

By joebanana on 2010 03 15, 11:23 am CDT

Joebanana—Problem is, the “average citizen” has an I.Q. of around 100, which is barely enough to enable him to balance a checkbook.

By AndytheLawyer on 2010 03 15, 12:05 pm CDT

If every law were written to be understood by the average citizen, many laws would consist mainly of definitions of the terms used therein. Law uses short terms of art to make them as concise and exacting as possible.

On the other hand, do you think other professionals—engineers, CPA, biologists, dancers, or poker players—would confine their instructions to fellow professionals using only plain English and no terms or art?

By AuBricker on 2010 03 15, 12:54 pm CDT

Actually, Andy the Lawyer has a point, the average IQ is about 100. The problem as I see it, is that the legal profession operates at an IQ of about 50! And many of the judges operate happily at around an IQ of 25.

AuBricker has a point, but the legalese is not the problem. It is it’s abuse. For instance: Federal Judge John Gleeson ignored the Rule of the Case and made a ruling, basically just rubber-stamping the papers of the attorney against a pro se litigant. The problem?

Judge Reena Raggi had been the judge of the case for 5 years and it was reassigned because she was elevated to the Circuit. This Idiot, we call him Dimlit, actually made a ruling that mirrored a prior magistrates ruling that Judge Raggi had overruled, merely 5 months earlier, as an “abuse of discretion.” (If links are allowed I can post a link to more detail- it’s much worse than what’s mentioned here).

You could literally have been trained for several years at one of the top law schools and they will ignore your arguments and rubberstamp the village idiot who passed a pass/fail test 15 years ago by randomly writing phrases on the bar exam.

By Ronin Amano on 2010 03 15, 1:22 pm CDT

In response to AndytheLawyer
  I did read Gideon and also the history behind Gideon.  Try Anthony Lewis - who talks bout how the lawyer who defended Gideon played poker with Justice Douglas.  (He later became a supreme court justice (Abe Fortise). Gideon’s Writ was hand written and was about three pages long. 
  At the time that SCOTUS reversed - the majority of states had already decided the same issue.  Scotus only affirmed what the majority of states were doing. 

    As to being able to interpret law, I still believe that if all of the RPC were strictly enforced there would be about 50% fewer lawyers practicing law.  One problem with our legal system is that many judges have a presumption that a pro se is not competent.  that is not starting from any scale of justice that i know. 
   
              Ironstone JD

  The recent issues being raised by Scotus and the President shows just how political courts have become. 
      If you look at one of the recent ABA reports about bias in EEOC cases, you should question why the SD between decisions is based on sex and race of the judges.  What I found amusing was that the authors still believe that there is a rule of law! 

39—There’s no institutional bias against pro pers.  Go read Gideon v. Wainwright.  But there is a bias against people, licensed or not, that don’t know what the heck they’re doing.  In most courts that ratio is expnentially higher for non-lawyers than for lawyers.

By ironstone on 2010 03 15, 11:11 pm CDT

@44

“Any law written as so the average citizen needs a lawyer to interpret it, is a void law.”

Try telling the IRS that.  Have you ever read the tax code?

By Tired today on 2010 03 16, 2:51 pm CDT

I worked for an appellate court for some time.  The number of cases processed each year is simply mind-blowing. 

Most of the cases are resolved based upon existing precedent, and they add nothing new to the analysis or to the development of the law.  If every case were published, it would, as lawclerk01 stated, very quickly lead to an unwieldy mass of case law, virtually useless for research purposes.  You’d be forced to read through thousands upon thousands of cases (or at least headnotes) all saying the same thing, while looking for the one or two cases on your particular issue.  It would substantially increase the time - and corresponding costs for the client! - required to research any given issue, with no corresponding benefit in terms of the number or type of legal issues addressed.

Additionally, it does take extra time to make a decision into a published opinion.  It must be grammatically perfect and free of typographical errors.  And it is circulated to every judge on the court for approval and comments, not just the panel of three judges who wrote it.  If this process were followed for all of the thousands of cases that come through each appellate court each year, the judges would be overwhelmed with work.  They simply don’t have time to make every opinion “perfect,” nor time to read and comment on every single decision issued by the entire court.

Judges don’t make the opinions “unpublished” in an attempt to hide their analysis or because they are being “sloppy.”  Most judges reason and write quite well.  But they are not perfect.  The attempt to make each published opinion “perfect,” both analytically and stylistically, does require quite a bit of extra time - and judges just don’t have enough hours in the day to devote that much time to every single case that comes through the court system.

Allowing the vast majority of decisions to remain unpublished and uncite-able saves substantial time for both judges and litigants, with little to no corresponding loss in the development of the law or our ability to understand what the law is.

Whether the unpublished decisions should be considered public records, available for anyone who is curious, is a different issue.  If folks simply want to read these unpublished and unciteable cases, I have no objection.  What I object to is the proliferation of useless cases and corresponding costs to do legal research that results / would result from having every case ever brought through the system become a “citeable” case.

By LegalMist on 2010 03 17, 2:36 am CDT

Mabye the judge is saying he hasnt done enough work to want to have his name next to the decision.  After all, it’s important to have good precedent out there, no?

By Son of Guano on 2010 03 17, 7:24 am CDT

#50-
I don’t think anyone suggests that opinions all have to be written for perfection as precedent. The problem here is that a LARGE number of unpublished opinions have widely differing analysis and follow completely opposite precedents, or even the dissents. The unpublished opinion as practiced is a complete violation of Equal Protection because the victims of the unpublished panel’s arbitrary and capricious rulings have their most fundamental rights ignored and/ or blatantly violated. For example, the principle of Double Jeopardy was ignored by the puppet judges of the First Circuit who simply ignored a prior acquittal. Even the very basic right to know the charges against a defendant were simply ignored. In the 9th Circuit the law used is simply a matter of luck. The entire system lacks accountability as Cert fails to supervise the lower courts which randomly sit in threes. There has to be a final answer. Cert doesn’t cut it. Unpublished opinions are simply a greater abuse of the system where the Circuit judges simply play favorites and reward corruption. Look at the Second Circuit’s history of aiding and abetting civil RICO crimes until the unanimous Supreme Court finally overruled them decades later. If their published RICO rulings were indefensible imagine how bad their unpublished RICO opinions were!

#48- The point is that if you took the brain of any Supreme Court Justice and transplanted it into someone without a law license, that Supreme Court Justice would be unable to get even the simplest, most basic rights and procedures followed. Conversely, if you lobotomize just about any lawyer or judge, you would find that their babbling would be treated exactly the same as if they were geniuses. In the EDNY an AUSA submitted a defense to a FOIA request appeal by stating “He is seeking Information!!” Surely, such a defense to a Freedom of Information Act request should be sanctionably frivolous- in fact then-Judge Sotomayor was puzzled by the defense and asked questions that left the babbling AUSA drooling worriedly. But in the end he was not punished. Yes. There are many pro se litigants who have no idea what’s going on. But there are many more situations were the judges and lawyers conspire to change the rules midstream against the pro se litigants.

By Ronin Amano on 2010 03 17, 3:57 pm CDT