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

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