Monday, March 01, 2021

In re Anderson (9th Cir. - March 1, 2021)

At some level, I appreciate it when the Ninth Circuit adopts -- as here -- the opinion below as its own precedent.  That shows a lot of respect for the lower court, which is nice.  Plus, as an added bonus, it couldn't be easier.  Gets an opinion off your plate with an absolute minimum of work.

But it's also always seemed to me simultaneously disrespectful to the litigants, especially the losing party.  Appellant spent a fair piece of money hiring a lawyer to file and prosecute an appeal, and the attorney in turn devoted substantial efforts to arguing that the lower court got it wrong.  For example, here, appellant writes a 30-page opening brief and a 15-page reply.  Those briefs directly challenge the reasoning of the lower court and explain why it's (allegedly) wrong.

It just seems somewhat insulting to not respond to any of these arguments at all in the opinion and simply incorporate the lower court opinion as your own.  I get that there's no oobligation to respond.  But for the losing side, I suspect you feel like you weren't really even heard.  Similar to an oral argument at which the judges don't ask any questions at all and passively sit there and listen, and then rule against you without any explanation at all.  Just seems wrong to me at some level.

Yes, I know that memorandum dispositions are like that sometimes as well; two- or three-sentence dispositions that don't actually explain anything at all, and simply state conclusions.  But I have similar reactions to them as well.  Sure, the Ninth Circuit's workload is substantial.  But you probably wrote a bench memorandum anyway that explains things, including but not limited to the arguments that appellant makes and why they're wrong.  Why not just cut-and-paste what's there?  Doesn't take much time, and gives the litigants at least the illusion that you put in some effort.

Personal style, I know.  I clerked for a judge who occasionally just incorporated the lower court's opinion.  Didn't really like it then, and haven't really changed my feelings much over time.