One of the things you have to deal with sometimes when you're on a Ninth Circuit panel is an opinion written by a different judge that reaches what you believe is the right result but in a manner that's quite a bit different than how you'd go about things were your chambers to have written the opinion. Sometimes, if the differences are substantive, you write a concurrence, and explain your different approach.
But on occasion, the differences aren't substantive. It's simply that the opinion written by the other judge is written in a way that seems . . . clunky. It doesn't really flow. It's not written in the manner that you're used to seeing. It just seems . . . off. (You recognize that others might well use harsher language to describe the opinion, but your reaction is simply that it's not an opinion the type of which you're used to seeing.)
So what do you do?
You could try to totally rewrite the opinion, of course. But that's neither your job nor likely to result in a great reaction from your colleague, who (presumably) thinks that the opinion he's drafted is totally fine. You could write a separate concurrence, but that seems a ton of work, particularly when you don't have a substantive doctrinal problem with how the opinion comes out. You could try to lightly tinker with the thing, but you might well accurately perceive that that won't nearly solve the problem. You could write a one-sentence concurrence that concurs in the result, but that seems overly harsh.
Or you could simply join the thing. It's his opinion. Under his name. It is what it is. Just leave it be.
These thoughts came to mind when reading this morning's opinion. The opinion is written by Judge Bataillon. He's a senior judge sitting by designation from the District of Nebraska. It's about personal jurisdiction, and by background, Judge Bataillon is much more of a criminal-type guy. The other two judges on the panel are Judges Bybee and Bennett.
To me, Judge Bataillon's opinion just reads . . . differently. I see a similar type of style and analytical process on occasion in first-semester civil procedure midterm exam answers when presented with very similar personal jurisdiction issues. It's not that the analysis is necessarily substantively wrong. It's just that there's definitely room for improvement with respect to both style and substance.
As a professor, no problem. You give the answer the grade it deserves and write comments (or talk with the student) to help make things better. As a judge, by contrast, it's a bit tougher. You've only got the choices described above. Plus, it's a visiting judge, so it's not someone you're likely ever going to work with again. So you do whatever you do and move on.
Others might have a different reaction to this particular opinion. But the dynamic definitely exists, and I'm confident that most every judge who's served for any length on the Ninth Circuit has experienced it in some form or another.
No biggie. Just another part of the job.
But an aspect of which I was definitely reminded earlier today.
