“Judgment” is Not Just the Name of a Document

[The courts] may truly be said to have neither force nor will, but merely judgment….”
—Alexander Hamilton, Federalist no. 78

On behalf of our deserving and longsuffering client, my firm recently won reversal of a $5.1 million judgment that was given to a successor trustee on a missing promissory note. Missing, as in, the trustee had never seen it, and never even thought to look for it — though his predecessor did make off with at least $2 million in trust assets (not including later funneling cash to Liechtenstein and spending a night in jail for contempt). This resulted in much unplanned excitement at a trial that was supposed to be simply about whether and how much was owing on the note. The trial court largely ignored the fact the note was missing. The Court of Appeal seemed to have little trouble concluding that that wasn’t right, and sent it back for retrial.

We couldn’t be happier to see justice for our client — who had already paid the note before the former trustee sued him as part of her looting spree.

I won’t rehearse details here (though you can read a summary here), but it is taxing — to the client, certainly, but even to counsel — to await the correction of such a truly baseless decision. Everyone intuitively understands checks, governed by the same rule as notes, are rather useless in Xerox form, and it ought to be as obvious to a judge that ruling otherwise requires findings — and extraordinary findings at that. Supporting a judgment with findings is the essence of the judge’s power. The peculiar power of the Court – “hav[ing] neither FORCE nor WILL, but merely judgment” (Federalist #78) – must support itself, if at all, by prevailing upon reason.

For that matter, a case currently awaiting decision by the California Supreme Court goes to just this question: when a court omits findings, is the error reversible per se? Or must the appellant establish the error resulted in a “miscarriage of justice” as the state constitution generally requires? (Our appellate decision avoided this question by finding that the omissions were indeed prejudicial.) The answer seems a rather obvious “yes” from my vantage: in a bench trial, the judge steps into the empyrean role otherwise played by the jury, and thus a judge’s decision without findings is no less infirm than a sentence without a verdict. The very act of giving reasons helps ensure a decision is rooted in facts and law rather than subjective preferences. As Justice Cardozo wrote, a reviewing court “must know what [a] decision means before the duty becomes [the court’s] to say whether it is right or wrong.” (United States v. Chicago, Milwaukee, St. Paul & Pacific Railroad Co. (1935) 294 U.S. 499, 511.)

There are abiding reasons for requiring judges to explain themselves. It is captured, for one, in the very idea of a common law — a law that develops by way of a conversation taking place through judge’s considered opinions over time. And it is captured also in the very idea of the rule of law, particularly in the manner in which a judge’s decision — ostensibly affecting only the parties before it — also becomes, by ways mysterious, a generally accepted “law.” Just how is it that the resolution of a discrete dispute between two peculiar parties become “law”? And in the case of the U.S. Supreme Court, “law of the land”?

Abraham Lincoln’s first inaugural address touched on this. He defended his rejection of the ignominious decision in Dred Scott not merely because that decision was particularly evil, but because court decisions bind principally the parties before them — if they should travel further, they must pay their own freight, in the currency of decency and soundness of judgment, to the judicious mind of the public. To require any less, Lincoln held, would convert the courts’ peculiar power from merely judgment to FORCE, and WILL:

If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

There are no factual comparisons to Dred Scott here, of course, but the same principle applies to both momentous civil-rights cases as to common commercial cases: A court cannot issue a judgment without reasons that have some purchase on the public mind. A historic struggle ensued to undo the damage of the Dred Scott decision’s impressive compilation of densely packed but ultimately sophistic reasoning. Would that it have simply ruled: “Because we said so,” undoing its work would have proved less burdensome.

But whether our courts offer up elaborate casuistry or terse ipse dixit to support their decisions, it is no less important to inveigh against it. Word play and edicts as substitutes for the exercise of giving reasons is not only an affront to due process, but an indulgence in an Orwellian destabilization of language. It is toward “the view,” in the words of Joseph Epstein, “of intellectual order as a form of oppression,” terminating, ultimately, in nihilism and despotism.

In awaiting the reversal, I experienced a glimpse of understanding — imagining: were the appellate court to hold that the rules may be suspended at whim, and without reason — this must be how minds, subjected in such ways to long periods of epistemic authoritarianism and obfuscation and doublethink, become lost.

Try this trick and spin it
Your head will collapse
But there’s nothing in it
And you’ll ask yourself

Where is my mind?

Fortunately, courts generally do supply reasons, given enough persistence. “Because I said so” should never be enough — even when reduced to a judgment. It is encouraging to remember that is still the case.

[show_avatar email=299 align=left]–Tim Kowal practices law in Orange County, California.



  1. It does help that there is now a population of legal minds willing to unpack the dense legal language often found in such judgments, so the public can see that it isn’t simply, because I said so.

    Also, good to see you, Tim!

    • Oscar — thanks. Your point seems true at the federal level. But there are issues of state law — even in attorney-rich California — that still get mangled and seem to go largely unnoticed. The example I often harp on is judicial admissions. My associate wrote up a synopsis of the current split of authority on a hornbook doctrine: http://tvalaw.com/tva-april-newsletter. In essence, a recent court took the view that even if you admit a fact in a pleading, it’s not an admission unless it’s counter-admitted. But that’s what we typically call a STIPULATION. An admission is a statement that can be held against the person unconditionally. But the only discussion I’ve seen on that point has been by a retired judge on his blog: http://marcusmediation.com/tag/judicial-admissions/

      And then there’s anti-SLAPP law. While I like the idea, it’s proved so convoluted that superior courts really should have a judge dedicated to nothing except hearing anti-SLAPP motions and studying all the new decisions that keep developing and refining the law on them.

  2. Tim! Good to see you!

    truly baseless decision

    Reading this, the main question I have is whether the judge who made the original ruling was very close to getting out the door and is now working as an arbitrator at some big company.

    • Jaybird — Shrewd. This was her last trial before retiring. She is now an arbitrator with JAMS (the outfit currently on trial in San Diego for resume-padding!).

  3. I think the new legal standard is that rulings only need to say “I think Donald Trump is Hitler, therefore…”

  4. Tim,

    Being where I am, I wonder if representing a chemical company which insists on pumping out toxic wastes and poisoning people is the best that can be done.
    I still have issues with the Clerk of the Illinois Supreme Court tampering with public records, an issue the subject of a class discussion in the paralegal program; e.g.:
    “Can anyone tell me what unauthorized practice of law is? I think I see a hand back there. Mr. Hart, could you tell us what unauthorized practice of law is?”
    “Unauthorized practice of law is when the Clerk of the Illinois Supreme Court refuses to docket a Rule 302(a) appeal on grounds that the minute order being appealed does not contain the word ‘unconstitutional.'”
    “Tha-a-a-a-at’s right! Even citing Rules! Very good, Mr. Hart!”
    And so on, for about five minutes.

    To jog your memory, this was about trying to get the litigation hold from Yahoo.
    Not that concerned, because after the documents they submitted, it gives me grounds to keep the case alive, which I will do in Delaware. This gives me a few advantages I won’t go in to here.

    Anyway, I do appreciate your kindness and humanity.
    Actually, this is a stand-out among those of your profession, though you are clearly a very skilled attorney, as the record shows.

    But there is another big difference between you and other attorneys.
    I asked Dean Miles from the U of Chicago LS about this, a few members of faculty there, and a few other law schools as well:

    Dear Dean Miles,

    I went through a paralegal program previously, and want to pursue a career in law.
    I have a few questions.

    It appears to be quite the consensus among attorneys on the internet that it is simply not feasible that one might gain knowledge of law by means of formal instruction in a classroom environment.

    What assurances can you give me that your law school is not a sham?
    If not, the practitioners in question being of such a mind, why might that be the case?

    Additionally, I do not fit the profile for the average law student. First, I am 50 years old. Secondly, I am of Native American heritage, though of one of the more photogenic groups of the deserts of New Mexico. Will my age and racial background be a hindrance?

    Also, my GPA is a bit lower than your median, around 3.56, though my LSAT score is 174, toward the high end. Will the low GPA disqualify me?

    Thank you for your time and consideration.


    Seriously, I am concerned about this thing where my attorney called me into the conference room at the courthouse to tell me the other side was violating ethics rules by falsifying evidence, who to report it to and how to do it, and the response I got from that body, as well as other attorneys (yourself excepted– I think you actually had anticipated it).

    Anyway, if you would give your thoughts on the questions to the Dean, I would appreciate it.

    Also, Tim, I’m an old man who has traveled way too much in this world. If I happen to look back wistfully and caution you against my mistakes, know that this is because I care about you on a human level, and not that I question your judgment or intelligence. Old people just do that sort of thing.

    • I received a response from Thomas J. Miles, Dean of the University of Chicago LS.
      I consider it an unsatisfactory response.
      He says:

      Thank you for your inquiry. I have cc-ed here our Dean of Admissions, Ann Perry. She can provide you information on our admissions process, and she can also refer you to information on the employment outcomes of our graduates.

      Also, please note that some information about the qualifications of our most recent entering class and our bar passage rates are available through our disclosures under Standard 509 of the American Bar Association, here: http://www.law.uchicago.edu/files/file/rev_2016_std509inforeport.pdf

      Thank you for your interest in the Law School.

      Best wishes,


      Now, I’ve seen the 509 releases from the place before. They’re on the ABA website, and you can go back for several years.

      What bothers me is that he seems to assume that employment at a top law firm is the proper metric here.
      What about the amount of bribes the Class of ’13 has received to date?
      What about the ratio of bribes received vs. bribes paid; i.e., cash flow?
      And how adept are the graduates here at embezzlement? Falsifying court records?
      I.e., what kind of skills do they have?

      These are important questions.

      Now, suckering a big name law firm into handing out a job is not small potatoes.
      But I could learn that anywhere.
      How to fix an election, or maybe a horse race– now that will pay some big money.

      I’m not sure if we’ve got the right metric here….

      • I found the response unsatisfactory. So I responded thus:

        Dear Dean Miles,

        I do appreciate your efforts, and I thank you.
        However, there were two questions here, and you responded adequately to only one.

        Again, there is an overwhelming consensus among attorneys on the internet that it is not feasible by any means that one might gain knowledge of law by means of formal instruction in a classroom environment.
        By extension, this pre-supposes that neither yourself nor the 139 other members of faculty at the UofC LS are capable of conveying any manner of knowledge of law whatever to any person whomever.

        Now, the basis for this belief is expressed as a requirement that it is exclusively an attorney who might achieve any manner of knowledge of law. As I have stated previously, there is an overwhelming consensus on this point.
        Nonetheless, this position presents a number of issues.

        Deconstructing the argument, it appears as if it is grounded on a belief of the oath of an attorney as some form of magical incantation.
        If it is exclusively an attorney who might possess any manner of knowledge of law whatever, then by no means might stellar grades at a prestigious law school be taken as significant of even a smattering of knowledge of law, for, though attorneys have CLE requirements, they do not ordinarily attend law school.
        Similarly, if it is exclusively an attorney who might possess any manner of knowledge of law whatever, then merely passing the bar exam cannot be taken as a sign of acquiring some knowledge of a body of law, for it is not attorneys, but non-attorneys, who typically sit for the bar exam. I am aware of the exceptions, but, for the moment, let us confine our enquiry to a single jurisdiction, as this would be sufficient to determine the result for all jurisdictions equally.
        Likewise, payment of the fee cannot be taken as significant of knowledge of law. Rather, it is the oath itself, given and taken under auspicious conditions, which mystically conveys on its speaker knowledge of law, as the oath-taker then becomes an attorney, who, definitionally, possess knowledge of law.

        The overwhelming consensus of this view notwithstanding, this leads to the issue of lawful arrests by law enforcement personnel, who, definitionally, unless they are also members of the bar in good standing, as non-attorneys, possess no manner of knowledge of law whatever. Thus, no arrest by any law enforcement personnel whomever might be taken as lawful, as no law enforcement personnel whomever may possess the slightest clue as to whether any act whatever, from arson to jaywalking, is lawful or unlawful, but entirely random. How can crime be said to be a legitimate issue, when no person whomever a non-attorney might possess any manner of knowledge of law, being wholly unable to tell whether any act whatever is lawful or not?
        Similarly, no person whomever, while operating a motor vehicle, on approaching a red octagonal sign bearing the letters S-T-O-P in white letters, could possibly comprehend what meaning this strange artifact might communicate, lest the driver also be an attorney, as any message stated would be completely indecipherable to any ordinary person a non-attorney. Surely, non-attorneys should not be expected to understand these strange signs, where they are entirely incapable of having any manner of knowledge of law.

        Now, perhaps I misunderstood the argument. Perhaps broad language has been stated which should have been heavily qualified.

        But I would like an answer to this question. There are other questions which depend on this answer, whether questions of you or of someone else.

        What do you say to this argument? What is your position on this?



        I do hope I get a good answer this time.

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