Do judges try to appeal-proof their decisions? I've been reading a lot of judges' decisions recently, and I've noticed a type of comment that comes up frequently: comments that seem to only be provided in order to make it more difficult for an appellate court to overturn their decision. Since I realized they were doing this, I notice it all the time. Comments that seem insignificant, but that if omitted would obviously allow an argument for appeal. This seems like a very niche area, there may not even be a book about it, but I'm hoping there's at least some kind of article from a Law Reform Commission or the like, or some good examples if anyone knows of any.
Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in several versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract. Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial. A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding. A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it).
Yes. Opening statements and closing arguments are part of the record, but they are not evidence on the merits of the case. Courts often cite them in their rulings on various issues, especially because they are strong indicators of a party's theory of the case and what the jury was being encouraged to consider when rendering a verdict.
If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent?
An appeal may be made by a plaintiff, prosecutor, defendant or other interested party, so the term 'defendant' is not very useful; the party opposed to the Appellant (and served with the appeal) is usually called the Respondent. A contested appeal just means that the Respondent wishes to be represented at the appeal, presumably to fight it; most appeals are contested, but not all. Unlike a first-order case which may go by default, an uncontested appeal will still have to have some sort of a hearing; you are, after all, saying that a court decision should be set aside, and the Respondent's views are not necessarily relevant. It is, though, fair to say that an uncontested appeal will have a greater chance of success.
The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary.
(My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Your expectation is incorrect. The name of the legal doctrine that allows a criminal judgment to have this effect in a civil case is called "collateral estoppel" which is also sometimes called "issue preclusion". See, e.g., A-1 Auto Repair &amp; Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004) ("Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.") Similarly, a case out of California stated: To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards. Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted). To the best of my knowledge, this is the rule in every U.S. jurisdiction (with the possible exceptions of Puerto Rico and Louisiana which are not common law jurisdictions). It is also the historical rule in British common law, although I don't know if this continues to be the case in non-U.S. jurisdictions. Procedurally, the determination that collateral estoppel applies would usually be made on a motion for summary judgment, or in the preparation of jury instructions which state that liability has been established and that the jury is to limit itself to determining causation and damages, rather than as an evidentiary matter. I've used this doctrine once or twice. For example, I used it in a case where someone fraudulently sold ditch company shares worth several hundred thousand dollars (in Colorado, water is gold) that he didn't own (a transaction that could not be unwound because the buyer was a bona fide purchaser for value and the seller had apparent authority as a trustee of a trust owning the shares even though he didn't have the actual authority to sell them under the trust) and then spent the money he received before he was discovered (if I recall correctly, for gambling debts). He was convicted criminally and then my client, the victim, sued for money damages including statutory treble damages for civil theft and attorney's fees based upon collateral estoppel and an affidavit as to damages in a motion for summary judgment. From a practical perspective the four main difficulties are that (1) people convicted of crimes often lack the income or assets to pay judgments, (2) there are double recovery issues involved in reconciling restitution awards in a criminal case (where the measure of damages is narrower) and damage awards in a civil case (where the measure of damages is broader), (3) there are priority issues involved in reconciling criminal awards for fines, restitution and costs, in each case with civil awards for damages, and (4) if the defendant declares bankruptcy, the non-dischargeability of the civil judgment must be affirmatively raised and proved (often this is elementary but there are strict time limits) in the bankruptcy proceeding. Tactically, it is often better to sue first, collect what you can, and to bring a criminal complaint only when it turns out that the perpetrator is judgment-proof.
Judges do not decide, jurors do (however, if a judge is the fact-finder, then the judge makes such a determination). The main input that the decision-maker gets is a jury instruction. In order to unify "reasonable doubt", "reasonable price", "reasonable delay" and so on, appeal is often made a mythical being, "the reasonable man", so reasonable force would be the degree of force the reasonable man would use in a given situation. I will draw from California criminal instructions ('cuz I have them) but similar instructions can be found across jurisdictions. For example, one instructions says "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes". Or from a negligence instruction "A reasonable person would have known that acting in that way would create such a risk". More detailed appeal to The Reasonable Person is found in the justified homicide instruction: Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. There is no explanation of what it means to be "a reasonable person". Since nobody believes that they themselves are unreasonable, a simple and also wrong way of judging the matter is to subjectively judge whether you yourself would do the same thing, if you were in that situation. Very often, instructions do not even bother to say what "reasonable" means, so (re interpreting expert testimony) "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence"; (re corpus delicti) "That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed"; "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty", "when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable" The closest the law has come to articulating an objective characterization of "reasonableness" is in "reasonable doubt" instructions. One characterization is in People v. Feldman, 71 N.E. 2d 433. It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime A somewhat improved characterization is the Calcrim instruction Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt There is room for improvement, but it points in the right direction. On rare occasions, a law is written that actually includes a definition. The Gas Price Spike Act HR 3784 said The term ‘reasonable profit’ means the amount determined by the Reasonable Profits Board to be a reasonable profit on the sale. It is then up to the board to subjectively determine what that profit is. (BTW this did not become law). [Addendum] It's actually very difficult to determine what reasoning judges use in those cases where they are the determiners of fact. They will likely call on their knowledge of law, asking "are these circumstances sufficiently like past circumstance A where the defendant was convicted, or more like B where the defendant was acquitted".
An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary.