The Judiciary: Do Facts Matter To Judges?
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The Judiciary: Do Facts Matter To Judges?

November 16, 2019


i think that uh… uh… what my observation uh… larry about the question you asked about the
judges deciding what the facts are or deciding what they aren’t uh… is more of a problem at the
appellate level than at the trial level generally speaking my experiences of
trial judges uh… by and large have been
better have been closer to the situation been more open to be persuaded to what the facts are should
be certainly we do have some judges saying well I’m just not going to hear that
effort uh… i think by the way we’ve moved in the wrong
direction on experts I’m a believer in the adversary process if your expert is touting junk science and then it’s your
opponents job to bring that out uh… but at the appellate level and
we certainly have this in the seventh circuit you have judges uh sydelle mentioned
who and i think you stated it exactly right
they their whole training has been to have
an ideological or theoretical point of view sometimes it’s not a
right or a left ideology it’s just a theory just their own theory and a case gets tried a record is made there’s
testimony there uh… the jury says i believe x and
i don’t believe y that’s golden in our system those are
the facts and the appellate judge writes an opinion and of course unfortunately you don’t know how bad it is unless you were the
trial lawyer and you read the opinion and say that wasn’t the case i tried uh… the person just said i’m going to
reach this outcome to foment this theory and in chicago of course it’s the economics and
law theory which has some good points but uh… and then they said these
are the facts or these are what I read an opinion by judge posner recently in a securities fraud case and he actually said in his opinion that he upheld he was upholding a
summary judgment he said I’m going to uphold this because the facts may be such-and-such and therefore i’m not going to let this
case go to trial ’cause i believe it may may be this let me ask this i wanted I wanted
to get back to that because that’s a very that whole legal technique of saying
what the facts may be is is well i think we should just get rid of it it’s of course silly
but uh we already got rid of it in theory that violates
all the rules of judging and lawyering that we know about but when the judge has the final say
that’s let me say for the benefit of the audience marty that when
you said he upheld a summary judgment what that
in effect means for the audience is that he upheld a lower court ruling saying
i won’t even let this go to the jury because I’m gonna say what the facts
are or not jan marty made a comment which i’m not that experienced at the trial level in my limited experience i have run
across a situation where the trial judge contrary to what may normally be the
case as marty said just didn’t care what the facts were have you had such an experience why I think i definitely have had such an experience
i thought you might say so definitely written about in jonathan hare’s book you know
a civil action which you know i’m proud to say pleased to say
is in many law schools in the country as a point of discussion it goes
back to my point about how we need this can i tell you something about that yes if i could only
read it twenty pages at a time it is so painful that i couldn’t read more than twenty pages at a time but go ahead
no i think that he really got into the belly of the beast he really
talked about what it means to be to do lawyering in our system all of it you know the
good the bad and the ugly and uh… and so i think that the it is this um you know need for this open and honest
discussion because yes there there is this arrogance of power and um… and it’s a terrible feeling to be a
lawyer to go into court and to have done your job you know to marshall together the
facts uh… to uh… to have the research and to
say look here’s how the facts fit with the legal theory um… and uh… you know we don’t all
have to have pride of ownership we we can be wrong but the point is to have done
your job and then have to have the judge come and
say well it’s not important in otherwords it doesn’t really make any difference that you did
your job and so therefore you say to yourself well who am I if i’m not a lawyer am I
an influence peddler i mean what is left to me what is my function here for
my client this excerpt is brought to you by the
massachusetts school of law

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