That's the title of Bill Hancock's article in today's Recorder
here. Here are some highlights:
As appellate
practitioners know, one of the most difficult arguments to make is that the
trial judge was not just wrong on the law, but acted "unreasonably"
or abused his or her "discretion" (which is essentially the same
thing). This is not just because of the daunting standard of review, but
because nearly all appellate justices were, at one time or another, trial
judges themselves and have a natural empathy for their kin on the trial bench.
One thing nearly all appellate practitioners agree on is that it is very
dangerous to "diss" the trial judge, and calling their decision
"unreasonable" should be done only in exceptional circumstances.
In doing so, the
advocate should be careful to make clear that it is the trial judge's
particular decision, not the trial judge themselves, that is
"unreasonable." The focus should be on the analysis, not the person.
One should let the facts speak for themselves. ....
The lesson: You can show
that the particular decision was unreasonable but can never say that a judge
is unreasonable.
Posts
