In defense of judges (at least some of them).

In his conclusion of this post at his Judging Crimes blog, Joel asks the question "What better job than appellate judge for the person who feels a psychological need to win every argument but lacks the intellect to win any? He can pretend to win the argument by lying about the facts of the case and misrepresenting the arguments of counsel, and he can then enlist the entire apparatus of the judiciary to make his pretense seem real. And for such a superlatively bad judge, the simulacrum is the closest he's ever going to come to the real thing, so of course he seizes every opportunity to experience it."

Ouch!

He empirically refers to an appellate judge "from the right side of the map" that a friend of his practices in front of, which Joel describes as follows:

This particular judge, while viewed as harmless enough by most of the bar, has developed an interesting reputation among appellate practitioners: his published opinions are full of lies. When he can't refute the arguments of counsel, he misrepresents those arguments and then refutes the misrepresentations. When the facts are inconsistent with his position, he ignores them or makes up others. "When you read his opinions, you need to constantly remind yourself that there's no more than a 50/50 chance that he's describing the case honestly."

The judge is running little risk of having his lies exposed because most lawyers reading his opinions (and no one but lawyers will ever read them) know nothing about the case except what the judge himself has revealed. The only lawyers in a position to expose his lies fall into one of two camps: those who aren't going to risk their client's victory by complaining; and those whose complaints would sound like sour grapes - and would almost certainly provoke retaliation. (Bad judges hold conscientious counsel's clients hostage in that way.)

In theory, the other judges serving on the appellate panel could check this judge's lying. But why would they want to? What's in it for them? As Judge Richard Posner has pointed out, appellate judges benefit in multiple ways by raising no objections to their colleagues' opinions. Going along to get along is rewarded by increased leisure, while scruples only mean extra work.

Perhaps even more importantly, passivity maintains cordial relations among colleagues. If Judge X points out that Judge Y has misrepresented the facts, Judge Y will retaliate by dissenting from Judge X's next opinion, forcing Judge X to write crabbing footnotes in rebuttal, and so on, until someone boycotts the annual party and the feud becomes a real drag for everyone who works at the court.

You have to decide which is more important: justice for strangers, or a comfortable workplace for yourself. (Whenever an appellate judge starts talking about "collegiality" on the court, pay attention, because it's a coded confession: he or she is admitting that the judges run the court primarily for their own benefit.)

I know that judge bashing is any lawyer's favorite sport (I certainly engaged in plenty of it when I was a practitioner) and I don't doubt that there are judges on the bench that are just as incompetent, lazy or deceitful as Joel describes. However, on the (perhaps mistaken) assumption that the judge above is someone other than me (I do admit to residing on the "right side of the map"), let me gently suggest that many, dare I say even most, appellate judges don't fit Joel's implied generalization.

If only I could win every argument with my colleagues. I confess that I never thought of just misrepresenting the arguments and then just refuting the misrepresentations in the sure and certain knowledge that my colleagues would be too lazy and polite to correct me. Indeed, my own experience is that neither I nor my colleagues are the least bit reticent about actively challenging any errors of fact or law that find their way into draft opinions. While judges are human and thus fallible, if any judge in my jurisdiction developed a reputation for consistently writing opinions that were "full of lies," his or her colleagues on my court simply wouldn't stand for it. Our culture is that while a single judge may be the author of an opinion, it is the opinion of my court and we all collaborate to insure through rigorous peer review that our opinions reflect a high standard for factual accuracy and legal scholarship. Now obviously a losing party may not agree with that statement as far as their case is concerned but we meet annually as a court with representatives of various statewide and specialty bars as well as trial judges, and ask them to constructively criticize our work and they have not been shy about doing so.

Courts, including appellate courts, are in the customer service business and the quality and utility of what we produce ought to be of paramount importance. My only counterpoint to Joel's post is that while I don't take myself very seriously, I and most of my colleagues do take our job very seriously indeed so while Joel's accusations may be the true in some jurisdictions, it isn't true in all of them.