If your company is paying more for legal services these days, it's not necessarily because your lawyer is charging higher hourly rates. Believe it or not, the courts themselves may be driving up the costs of providing sound and reliable advice by making it harder for lawyers to find and decipher judicial rulings.
Confronted with larger and larger caseloads, state and federal appeals court judges throughout the country are cutting corners that, observers say, harm the integrity of the justice system. More and more, judges are handing down rulings that litigants in other cases can't use as precedents and deciding appeals with a laconism bordering on curt: "Affirmed."
This is not a new phenomenon. Almost 10 years ago, a federal district court ruled that a public authority violated the Commerce Clause of the U.S. Constitution by requiring all waste originating or collected within the state to be taken to an in-state disposal facility. [Stephen D. DeVito Trucking Inc. v. Rhode Island Solid Waste Management Corp., 770 F.Supp. 775 (D.R.I. 1991)] For reasons of its own, the authority appealed the ruling to a higher court, which promptly disposed of the authority's arguments, saying merely, "[T]he decision of the district court is affirmed for substantially the reasons stated therein." 947 F.2d 1004 (1st Cir. 1991)
Judges embrace the shortcuts as an operational necessity in the face of being flooded by lawsuits. Critics are called sore losers and troublemakers.
However, a ruling handed down last summer in a federal tax case may spell a change. A panel of the St. Louis-based U.S. Court of Appeals for the Eighth Circuit took the critics' side when it condemned the practice by many courts to limit the number of their decisions that are published in official law periodicals. The decision noted that the authors of the U.S. Constitution wanted decisions by the nation's federal judges to become building blocks for the evolution of the law. To do so, the judges needed to be able to examine copies of earlier decisions and their legal reasoning.
Unpublished opinions give judges an opportunity to express themselves in a relatively pithy fashion - without the open scrutiny of their analysis and reasoning that accompanies a published opinion. Some observers conclude that because the process relies less on prior rulings and does not affect subsequent cases, unpublished rulings tend to be decided on a somewhat arbitrary basis.
According to established practices in most state and federal courts, lawyers cannot cite unpublished cases as precedent for rulings in other cases. As a result, two cases with similar facts can be decided differently within the same judicial circuit.
How widespread is the tactic? About two-thirds of federal appeals court decisions and in some states as many as 90 percent of court rulings go unpublished, according to official reports. What results is a huge storehouse of hidden law.
An important critic of judicial shortcut is the American Bar Association, Chicago, which last February, passed a resolution imploring federal appellate judges to include "at a minimum, reasoned explanations for their decisions."
In 1999, the Philadelphia-based U.S. Court of Appeals for the Third Circuit changed course and began limiting its reliance on one-word opinions. Other federal circuits now are beginning to allow references to unpublished rulings in briefs and arguments, but they remain staunchly against their use as binding precedents.
Last spring, the California General Assembly held hearings on a bill that would have required all appellate opinions from the state court system to be publicly available and fully usable by lawyers. No legislation emerged, but the attempt was notable. (If a bill had passed, a constitutional question might have arisen. It's one thing for the courts to decide for themselves how to do their job; it's quite another for the legislature to instruct the courts on how and when to write an opinion.)
The decision by the three-judge Eighth Circuit panel could be upheld, modified or simply overturned by the full 10-member bench. Federal appeals court judges throughout the country are worried about the issue gathering steam. Some believe that the system would be stymied if every case became an arguable precedent, forcing judges to clarify and explain routine matters.
"It is a fallacy to think having more out there is better," said Judge Alex Kozinski, who sits on the Ninth Circuit Court of Appeals in San Francisco. "More garbage is not better."