Maybe the judge is wrong

Posted Friday, February 19th, 2016 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to General Public

Earlier this week I spent two days presenting and attending a legal education seminar, “Family Law From Start to Finish.” As with most such seminars, I heard a number of war stories in the guise of questions where a lawyer would tell me about a case in which a family court judge had issued a ruling that contradicted the legal point I was discussing. These attorneys assume, since a family court judge had ruled differently, there must be something wrong with my analysis of the legal issue I was trying to explain.

Despite experiencing years of frustration with what they believe are erroneous rulings, attorneys often give me a look of shock when I respond to these unhappy war stories with “maybe the judge is wrong.” That thought has occurred to them, but they simply lack the confidence to express it. During this seminar, I was lucky to have a colleague in the audience whose appellate skills I greatly respect. When encountering these war stories, where I though the judge had gotten it wrong, I would ask her, “do you think the judge got it wrong?” She almost always said yes. I would then ask, “would you appeal?” Again, yes.

I think I know South Carolina family law very well. Yet, if I ever became a family law judge, I would be making multiple erroneous rulings every week. There are parts of family court law in which I have very little experience [juvenile law] and other areas in which I would have less experience than many of the attorneys handling that type of law. Confronted with hard decisions in close cases, I would be thrilled to “get it right” 90% of the time. But that’s a whole lot of error, and it should be humbling to know that one is making frequent consequential errors. Most of the family court judges I know well are humbled by the power they possess.

Appellate courts exist to protect litigants from these most consequential errors. There’s four reasons appellate courts do a pretty good job of fixing lower court errors and only one of those reasons reflect, in any way, negatively on the lower court judges. Sure, appellate court judges tend to be slightly better scholars of the law: each step up the judicial levels is a promotion and the judiciary is somewhat of a meritocracy.

However the other three reasons appellate courts are good at correcting errors has nothing to do with lower court judging. First, there is a selection bias: badly reasoned lower court decisions are the most likely to get appealed. Second, appellate courts have a greater number of judges the higher up one goes. It is easier for a one person majority to come to an erroneous conclusion than a three or five person majority. Finally, trial judges have little time to make their decisions before actually having to decide. Appellate courts have the luxuries of time and deliberation before actually deciding. Appellate court reversals function as useful corrective from the consequences of bad lower court decisions, not as an indictment of lower court judges.

I’ve occasionally had lower court judges tell me immediately after issuing a clearly erroneous ruling, “I am the judge.” Stated with the intent that they are infallible I can only think to myself, “good thing the road to Columbia [where the appellate courts sit] is all interstate.”

However, more often, a judge making a hard decision on a close case will utter the same phrase. Here I perceive a sense of humility in being the final word [for, at least, that day] and find empathy for that judge.

Too often attorneys think they got an unexpected and bad result because they misunderstood the law or the facts. They might consider that, perhaps, the judge simply got it wrong.