Procedural Fairness For Courts and Judges   resource and discussion on procedural fairness

University of Florida law professor Merritt McAlister has just published an article considering the use of unpublished decisions in federal appellate courts through a procedural-justice lens. The article is in the Michigan Law Review and is entitled, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals. Every appellate judge should read it.

Professor McAlister has filled an enormous gap in the procedural-justice literature: she is the first scholar to bring both data and a procedural-justice lens to the appellate courts. For those who want to start with a summary, here’s the abstract McAlister provided in the article:

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.”

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.”

This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

McAlister categorizes unpublished opinions into four categories: (1) the publishable decision, (2) the memo decision, (3) the avoidant decision, and (4) the Kafkaesue decision:

• A publishable decision has all the elements of one that could have been published. While perhaps it should have been published, it has an explanation to the parties that satisfies procedural-justice principles.
• The memo decision is shorter and may leave out some facts—thus making it different than a published opinion. But it still identifies the issues on appeal and explains why the appellant’s arguments succeed (or, more often, fail). So these too satisfy procedural-justice principles.
• The avoidant opinion is issued in a case involving complex issues and sometimes even after oral argument. But the opinion avoids discussion of the difficult issues. McAlister cites an Eleventh Circuit opinion in which the court heard oral argument on an issue that had split other circuits 6 to 4. After 16 months, the court’s opinion said: “Having heard oral argument and carefully reviewed the record, we find no reversible error in the district court’s order dismissing plaintiff’s § 1983 false arrest claims against the above officers. We therefore AFFIRM the district court’s order of dismissal.” Even a person with limited imagination can tell that the losing party will not have felt that the case—and the claim—were taken seriously. This opinion doesn’t satisfy any procedural-justice principles.
• The Kafkaesque opinion may be issued in any sort of case and comes with no reasoning whatsoever. Often, it’s a single word: “Affirmed.” McAllister notes that the Eight Circuit issued half of its opinions in this way in the year ended Sept. 30, 2018; federal data showed half of the Eighth Circuit’s opinions that year as unsigned opinions, issued without comment on the merits. These opinions clearly satisfy no procedural-justice principles.

McAlister argues that every opinion should have at least these required elements to meet procedural-justice standards: “(1) identify the issues on appeal; (2) explain the relevant law; and (3) apply that law to key facts.” Even if that adds to judicial workload, she argues, meeting those requirements is necessary to make sure that litigants feel heard: “How can that [increased workload] possibly be a bad thing, given that the decision has persuasive value and affects someone’s life?”

I’ll admit to some mixed emotions reading McAlister’s article. She rightly noted in her article that it filled a rather large gap in the literature. I’d noticed that too, and I have a 37-page draft article (“Getting It Right Isn’t Enough: The Appellate Court’s Role in Procedural Justice”) that I’ve been working on. But even though it’s back to the drawing board for me (sigh), I am thoroughly impressed with—and appreciative of—the work McAlister has done.

It’s far too easy over time for judges to become isolated from the people who read our opinions. And appellate judges are largely isolated from the parties in the cases before us. But a reminder of the procedural-justice implications of a limited work product is important. Professor McAllister’s article should be a game-changer. I hope that appellate judges will carefully consider her recommendations.—Steve Leben

One thing I remember from middle and high school math was the fixation on requiring us to show our work.  We didn’t just have to produce the correct answer; we needed to show the path we traveled to get there.

I’ve thought about that lesson a lot in my role as an appellate judge reviewing trial court orders. In many areas of the law, precedent or statutes might tell a trial judge that he or she just has to check a few boxes (such as incanting magical statutory language) but there is no need to actually explain the decision. Busy trial judges dutifully do that, and sometimes say the bare minimum, perhaps out of fear of reversal if they go off-script and actually explain their reasoning.

I’d like to challenge trial judges in these scenarios to think about them as opportunities to increase transparency and procedural fairness. A question to be considered is whether the person appearing before you actually understands the basis for your ruling.  Reciting statutory language that lawyers understand but lay people don’t might leave the party in the dark, particularly if the findings aren’t specifically tailored to the case at hand. I’ve read several transcripts where the judge said the right things to get affirmed, but I suspect it all sounded like Greek to the party in the courtroom. I’ve also read transcripts where the trial judge took the time to actually explain what was happening to the party involved, and I have to believe that those parties walked away with a better understanding of what happened and why–all of which increases faith in our judiciary.

Showing your work thus will help litigants understand what actually happened.  But it also really helps appellate judges as we review the case.  I can’t think of a situation where I’ve said “I really wish the trial judge hadn’t explained the basis for the ruling.”  Much to the contrary.  And oftentimes, when discretionary calls are involved, an explanation (even if short) by the trial judge gives me the comfort that the ruling rests on a proper foundation. To my trial court friends, your explanations improve the overall appellate process.

And when the case gets to appeal, the same lessons apply to us, as we appellate judges also need to show our work and explain the basis for our decision in a manner that the parties can understand.  That doesn’t mean that all opinions must be prolix, but they should squarely tackle the case at hand and convey to the parties that we understood and fairly evaluated their arguments (and not just some of their arguments, but all of them). Beyond helping the parties, full explanations provide the bar with useful precedent with which they can advise their clients, and it assists trial judges as they apply the law in their courtrooms each day.

Who knew how important math lessons could be for the administration of justice?

–Pierre Bergeron