Denver Bar Association
January 2006
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The ‘Nearly Invisible’ Decision–Making

by Chief Judge Janice B. Davidson
Colorado Court of Appeals

DBA President Chris Little decided not to write his own column each month. Instead, he recognizes how hard our judges work, despite the lack of judiciary funding. Several judges from various courts will write about their daily experiences.

What is it that we do?
I have been on the Court of Appeals for 17 years and have yet to find a simple answer to the question, "How do judges decide an appeal?" You could spend hours observing an appellate judge at work, but I don’t think you’d be very enlightened. Unlike trial courts, where personal observation or gavel-to-gavel TV coverage gives an excellent view of what happens, the decision-making process in an appellate court is nearly invisible.

This absence of transparency may be inherent in deciding appeals; however, it is not particularly desirable. Hence, although how appellate judges make decisions is not easily explained in mechanical terms, I will provide a skeletal overview.

In deciding cases, appellate judges are limited to information contained in the trial or agency record, the parties’ briefs, case law, and other authoritative materials. From there, the judge determines the operative legal precepts and any controlling principles, rules and precedents and, in light of the procedural posture of the case and the applicable standard of review, applies them to the facts. If the judge decides there are no controlling precepts, he or she reaches a tentative decision by choosing among the competing rules and policies based on the operative facts of the case, applying legal analysis, logic, experience, intuition, common sense, and a basic sense of what is practical and what is fair.

Appeals in most intermediate appellate courts are decided by panels of three. One of the judges writes a proposed opinion that, at least in this court, includes the decision and justification for that decision. If the case is based on controlling precedent (more than 80 percent of the cases filed here are), the opinion includes a discussion of the operative facts, the issues raised, the decision, and an explanation as to how it was reached.

Writing the opinion for a case that will be published requires significantly more work. Published opinions set precedent, at least until our Supreme Court says otherwise. A precedential opinion controls not only the case being decided, but future cases as well. The rule announced can be neither too broad nor too narrow, and the reasons must be explained with the utmost precision. It is an exacting and time consuming process.

In all cases, a judge not authoring the opinion performs a somewhat more circumscribed, but similar review. All three judges then analyze, debate, critique, edit, rewrite, and ultimately agree or disagree with all, part or none of the proposed resolution. The panel continues to confer until each judge is satisfied with the opinion or has written a separate concurrence or dissent. Sometimes the proposed draft becomes the dissent and one of the other judges writes an opinion for the newly formed majority.

How Does It All Get Done?

Nearly 2,800 cases were filed in the Court of Appeals in FY 2005; more than 1,700 of those resulted in a written opinion. For each of these opinions, the appellate decision-making process described above is undertaken by each judge, every day. This requires, per judge, reading at least 3,000 pages of material a month and writing approximately 90–100 opinions each year.

Presumably, the ideal is that each step in the appellate decision-making process be done by a judge. However, with this volume, 16 judges cannot personally handle all aspects of decision-making and still decide cases in a timely manner. The ongoing tension, then, is between speed and more comprehensive opinions. So far, the judges here have tried to meet both demands by working longer hours and accepting certain compromises from the ideal.

Of these compromises, the most important has been shifting significant responsibilities — like record review, research and initial writing — to law clerks and central staff, and I find no discomfort with this. The judges here are well aware of what aspects of each case cannot be delegated to staff. At the very minimum, all judges read all of the briefs and pertinent authorities, review the record as necessary, exercise independent decision-making, and determine, for each decision, the proper wording and rationale.

Other tradeoffs, such as restrictions on length of briefs, have been implemented here for decades. Recently, the court instituted a system of pre-assignment of cases and now, opinions in more routine cases are issued per curiam, with no designated author judge.

While we have no intention of doing so, many other intermediate federal and state appellate courts have taken more drastic measures to deal with volume. These include deciding some cases without written opinion, or with an opinion of only one or two sentences, or limiting oral argument to certain prescreened cases.

Unfortunately, I really don’t know what additional compromises our court may be forced to make in the future. Reducing the number of case filings is out of anyone’s control. Reducing the number of filings per judge, however, is not: it can be accomplished if we are allotted more judges. Without them, sheer volume likely will require further deviation from the ideal. With more judges, however, perhaps we can rethink some of the tradeoffs we have already made. Meanwhile, whatever the conditions may be, our court continues its commitment to timely resolve, by impartial, clear, and well-reasoned opinion, to each case that is brought before it.

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