Monday, October 10, 2016

The Elusive 'Unreasonable' Trial Judge

That's the title of Bill Hancock's article in today's Recorder here. Here are some highlights:
Image result for elusive judgeAs 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.