Off the Bench | Criticism, debate part of judicial process

Off the Bench | Criticism, debate part of judicial process

Last month, I wrote about criticism of judicial decisions by politicians, cartoonists, editorial writers and others.

Such commentary is an acceptable part of our democracy. However, there is a danger in attacking the judge or our entire system of justice merely because one does not like the result and seeks to score points with constituents, listeners and readers.

It is important to the rule of law that judges do not bend to the pressure of such attacks, and it is important that the public factor in the biases and interests of the commentator when evaluating the message.

Jurors do that in every trial. Based upon my experience, I believe they do an excellent job of it and will trust the public to do it as well.

As indicated last month, criticism is a natural and normal part of every decision. A judge who has "thin skin" is in for a rough ride.

Tracking the resolution of a ruling provides a good illustration. We shall follow the progress of a ruling on a motion for summary judgment in a civil case. This motion was filed by the defendant and was granted by the trial judge, thereby ending the case before it went to the jury.

The attorney for the plaintiff could file a motion to reconsider, in which the claimed error or errors of the judge would be pointed out.

If the judge agreed, the motion would be granted and the original ruling set aside. If not, the motion would be denied, leaving the attorney to file an appeal.

In the brief filed with the appellate court, the lawyer would again set forth the error or errors she claimed had been made by the trial judge.

The judges of the court of appeals would consider the points raised in the appeal and then affirm or reverse the original ruling.

Clearly, if the decision was reversed, the reviewing judges found error. Their criticism of the trial court's decision would be public and sometimes strongly worded.

However, even when the decision is affirmed, the trial judge can be taken to task for the reasoning or other aspect of the handling of the case.

I recall hearing the term "stinging affirmance" applied to the situation where the appellate opinion affirmed the result but took issue with the trial court's reasoning.

Continuing our example, we shall assume that the party who lost at the appellate court sought review by the United States Supreme Court. That court does not accept all appeals in civil cases. We shall pretend it did in this case.

Again, the briefs submitted will contain assertions that the court committed reversible error. In fact, in some cases, non-parties may file amicus or "friend of the court" briefs that can also challenge the decision and the thinking behind it.

Keep in mind that the briefs are public documents that can be read by anyone.

Once the court has considered all the written and oral argument in the case, a decision will be announced. The case will either be sent back or reach a final closing point.

Since the subject is lawyerly criticism, one more area deserves attention. Whether at the intermediate court of appeals or the Supreme Court, decisions are not always unanimous.

In our fictional case, suppose two judges on the court of appeals voted to reverse the decision made by the trial court while one disagreed. Further suppose the Supreme Court decision was a 5 to 4 decision to reverse the court of appeals.

Besides having a delighted trial judge who would feel vindicated by the high court, the final tally would be a total of seven jurists seeing it one way and six the other way.

At either level of review, members of the court in the minority may file a written dissent in which the decision and the rationale of the majority is challenged and criticized.

When a dissent is filed, the majority opinion may include references to the dissenting opinion pointing out its flawed reasoning. On occasion, this commentary can be quite sharply worded.

This is not a haphazard process. The lawyers writing the briefs and arguing the case spend many hours researching, drafting, editing.

The judges and the talented lawyers who work in chambers do the same. The advocates seek to promote the interests of their client. The members of the court seek to deliver a just result and, while doing so, clarify the law.

As one can see, challenge, intellectual debate and criticism are a natural and regular part of the judicial process.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is

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