How do you spell ‘G-U-I-D-A-N-C-E’? is the title of Justice Hoffstadt's DJ column today, with the subtitle: Although the courts' hesitancy to give guidance for future cases seems maddening at first blush, there is some method to that madness.
The article begins by citing a pair of U.S. and California Supreme Court cases that expressly declined to provide guidance to lower courts about the law. "Daniels, Tovar and the like hit upon a more fundamental question: Why are appellate courts sometimes reluctant to tell trial courts what is expected of them? The short answer is: That's not the way the common law works."Why won't appellate courts hasten this process by giving trial courts greater guidance up front, rather than requiring them to navigate between -- and extrapolate from -- the existing safe harbors and shipwrecks?
So far, the courts have offered two reasons.
First, appellate courts are leery about issuing advisory opinions.
...
Second, appellate courts are leery about tying the hands of trial judges by prescribing "magic words" that must, in every case, be said or "rigid rubric[s]" that must, in every case, be followed.
See also in last week's On Appeals column in the Recorder (by Polly Estes of California Appellate Law Group), On Appeals: Effective Letters to the Higher Court, which begins: "If you’ve ever wondered why federal appellate court judges bother to write dissents, especially dissents from the denial of rehearing en banc (“dissentals”), read the recent U.S. Supreme Court case of 'Kernan v. Cuero', where the Court observed that, “The Ninth Circuit denied rehearing en banc over the dissent of seven judges.” This seemingly short, procedural sentence in the Court’s per curiam decision speaks volumes. It reveals that Cuero is just the most recent example of conservative judges on the Ninth Circuit using that court’s en banc procedures to try to send what they believe are important, incorrect cases up to the Supreme Court—and it’s working."
Last week's DJ had Gary Watt in Searching for Perfection: Like fly fishing, appellate work is best performed in a state of quiet contemplation:
Solving puzzles is a state of mind familiar to appellate lawyers. Blessed with a luxury of time many of our colleagues lack, we are tasked with spotting the best issues and finding the most definitive answers. But our goal -- short, crisp, persuasive writing anchored in fidelity to the record and conventions of the craft -- is often as challenging as the wary trout that fly fishers try to trick. We know why we should win. But putting it on paper is trickier than words can describe. Yet words must describe it.
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