Thursday, February 03, 2011

Findings of fact, and musings of law

Judge Primeaux responded to our rant on "heightened scrutiny" of verbatim-adopted fact findings (and really, it wasn't meant to be a rant, it just kinda grew into one). We are so pleased at his addressing the topic (and adding thereto) that TBA elevates his comment into this post, with our own observations.

JP: -- I have never understood the heightened scrutiny rule as to ffcl. If the chancellor believes that one side's ffcl exactly captures what he or she heard and concludes, does it matter? The rule seems to assume that the chancellor has abandoned his own thought process and analysis if he adopts one side's ffcl, which I think is a non sequitur.

Of course chancellors are not supposed to do any such thing, and as I said earlier, if all chancellors were Primeauxs, there would be little room for concern. But except in the most simple and concise of hearings, it does seem questionable that an interested party's view of the facts would coincide 100% with that of the court. Especially given the time delay that is typical with PFFCL's. The standard to my mind simply means that, on any close questions that otherwise might tilt to affirming simply based on deference to the chancellor, the reviewing court is free to pay less deference in view of the fact that the traditional reasons for deference do not apply with equal force.

JP: -- Chancellors must make extensive written findings of fact to support their conclusions, but juries have no such requirement. There is no such requirement for the finder of fact in a jury trial. How do we know whether what a jury decides is supported by substantial evidence if they don't tell us in detail what is the basis for their decision? But, you say, appellate courts have always scrutinized jury verdicts against the evidence at trial. Fine and true. If we can make that determination for a jury verdict without specific findings, why can't we do the same for a non-jury trial?

This is true, but two things that bother me are credibility and weight determinations. Those are difficult to judge on the page, so that the appellate court defers a great deal to the fact-finder (hence the "overwhelming" weight of the evidence standard). That deference is more properly owed to the court's own fact-findings, not its adoption of a party's.

I would suggest to all judges requesting findings that they request them in electronic format, to encourage cutting, pasting, and revising. My sole concern here is the 100% verbatim "sign here" adoption of a party's PFFCL.

JP: -- Are chancellors' decisions really given deferential review, or is that concept more of an historical view that has yielded to a more interventionist appellate role? Early in my career, it was common to discourage a client who wished to appeal from chancery on the basis that it was rare for a chancellor's decision to be overturned. A lawyer told me not long ago that he routinely advises clients to "roll the dice and appeal," because you have a good chance that you get a COA judge who likes to assume the role of chancellor. That is probably an overstatement, but it captures the sense of what I'm trying to say.

I think that is exactly right about the COA, which I also note seems to me to've gotten reversed at a higher rate in the past year or two. But I think that says more about the quality of our COA judges. Some are good. Some, not so much.

JP: -- I have had more than one trial lawyer comment that what they read in the appellate court's opinion as to facts bore little resemblance to the evidence at trial. Does this mean that lawyers who write briefs are loading them up with "facts" that were never presented to the chancellor at trial? And if it does mean that, then are the appellate judges not reading the trial record? If Justice Waller is right, and there is nothing in the Williford record to support the findings of the majority opinion, what does that tell us?

Some lawyers absolutely do lie, to put it bluntly. (That occurred in the case that really soured me on the COA.) OTOH, a lot of trial lawyers have an eerie ability to remember trials the way *they* saw them, omitting to recall contrary evidence. I have experienced this as the "clean-up" appellate lawyer coming in after a jury verdict; the lawyer tells me about the trial, quite sincerely, but then I get the transcript and I'm all "uh, but what about this?" Perhaps Judge Primeaux's interlocutor was a victim of this phenomenon.

That btw is another reason to mistrust a party's PFFCL.

Then again, appellate judges are not perfect. I won an appeal, and the dissent recited a great many facts from the record as to why my client should've lost the appeal. Problem was, the jury found X, and even tho it was vs. my client, it was so much a defense verdict that we were *defending* the jury verdict on appeal. So the fact that the good justice preferred to emphasize different facts was beside the point. That was simply a political dissent by a political justice, IMHO.

JP: -- Is our body of case law, with as many COA and SC opinions as we have, getting so large that we can no longer manage it? In my experience, I read an opinion and say to myself, "wait a minute; that holding contradicts the [insert name here] decision from 1987," and yet the new decision does not overrule, explain, distinguish, or even cite the earlier decision. Is it a lack of time devoted to research by staff? Is it that there are too many cases on appeal (which could be reduced by exercising true deference to chancellors' findings)? Could it be that our body of case law is becoming so unwieldy that it is getting more difficult to distinguish what is and what is not precedent?

Good question, but I don't think the volume of case law is to blame -- not in the Westlaw era. (Nice plug for deference there btw!) Bluntly, it's got to be poor law clerks. (I say this as a former law clerk.) They are not well paid, they are rarely near the top of the class; if they were, they would have gotten other jobs. There are always exceptions, but simple economics will usually be a good predictor.

A recent MSSC opinion included this language:
Actually, the statute required “the trier of fact [to] determine the percentage of fault for each party alleged to be at fault.” Miss. Code Ann. § 85-5-7(7) (Rev. 1999) (emphasis added). The term “party” appeared nowhere else in the statute. It is susceptible to more than one interpretation. If it means a party in the sense of named parties to a lawsuit, then Harris’s fault could not be taken into account. The appellant did not raise this issue, however, and it is not before the Court at this time.
Uh, hello? Estate of Hunter? This question has been resolved for 20+ years, in a case I didn't think you could pass the bar exam without knowing. If the MSSC can write that, then someone is poorly serving the Court.


  1. while clerks are underpaid... that is the nature of clerking.
    Dont blame the clerks. Blame the "author" and the concurring justices

  2. I put it on the attorneys. Too often you see one side fudging facts and law to advance their case. Rather than setting them straight, the other offers no meaningful response -- or, worse, he does the same thing in the other direction. Some things just slip by. It's what rehearings are for.

    As to proposed findings of fact, you'd hope that the possibility of the court adopting them would encourage the parties to be straight with the facts and sure of the law. Too often it seems they just put everything imaginable before the judge and hope he'll sort it out.

  3. (1) Concur in part re: clerks, but the "nature of clerking" argument could support paying them minimum wage. The salaries should be up closer to federal clerks.

    (2) It's true that bad counsel make bad decisions, but I know from sad experience that you can point out, with pinpoint cites and quotation from the record, the falsehoods of an opposing brief, and have it make no difference to the COA.

    (3) I suspect that the mere fact that the court is requesting PFFCL encourages the parties to think they can sell a bill of goods. If the court were going to work hard enough to go behind the submissions, it might write its own opinion in the first place?