News
Appellate Practice
Jul. 23, 2002
Judge-Speak
Dicta Column - By Robert S. Thompson - Appellate specialists know that appellate courts employ their own brand of terminology. This glossary translates appellate court phraseology for the benefit of the uninitiated.
Dicta Column
By Robert S. Thompson
Appellate specialists know that appellate courts employ their own brand of terminology. This glossary translates appellate court phraseology for the benefit of the uninitiated.
Appellate courts in oral argument use these typical phrases:
• "We are intimately familiar with the record and have carefully studied the briefs." Translation: Our research attorney has drafted the opinion.
• "We're interested in logic, not argument." Translation: Our research attorney has decided against you.
• "Don't reiterate what's in your brief." Translation: I may be late for my golf game.
• The preceding sentence accompanied by, "You are not permitted to argue points not included in your briefs." Translation: The opinion has been written. I don't want to irritate my research attorney, and I'm really afraid I'll be late for my tee time.
• "The case is submitted, and our opinion will issue shortly." Translation: We'll hold off a bit filing the research attorney opinion to make it look like we considered the arguments.
The language in the written opinions may be interpreted as follows:
• "The learned trial judge" or "The experienced trial judge" when the trial court is affirmed. Translation: We haven't a clue. Let the trial judge take the heat.
• "The learned trial judge" when the judgment is reversed. Translation: That idiot.
• "The experienced trial judge" when the judgment is reversed. Translation: Senility has set in.
• "We condense the voluminous record to its essence." Translation: The research attorney has recited the record to support the conclusion we want.
• "We necessarily recite the voluminous record in detail." or "The controlling authorities are voluminous but must be discussed." Translation: We need a long opinion so we can sneak in the unsupported result we want without it being obvious.
• A combination of the prior two. Translation: The result we have to sneak in is off the wall.
• "We are controlled by Supreme Court authority." Translation: Let the Magnificent Seven take the heat.
• "This appeal involves a difficult issue of inverse condemnation." Translation: Abandon hope if you're the property owner.
• "This appeal involves a close issue involving state taxation." Translation: Abandon hope if you're the taxpayer.
• "The California Constitution demands the highest respect for individual liberty and protection against government intrusion on personal rights." or "The tort victim is entitled to be fully compensated and large punitive damages serve a vital public interest in deterring corporate misconduct." Translation: There are a Democratic governor and a possible future opening on the California Supreme Court.
• "While the California Constitution is protective of individual civil rights, the importance to a civil society of effective law enforcement cannot be overlooked." or "Tort victims are entitled to compensation but not overcompensation. Punitive damages are disfavored and must be limited proportionally to the actual damages lest they deter socially desirable economic progress." Translation: There are a Republican governor and a possible future opening on the California Supreme Court.
• "This is a case of first impression." Translation: Our research attorney wasn't able to make sense out of the mass of authorities.
• "This is a case of first impression" in an opinion not certified for publication. Translation: We love the result but can't support it.
• "This opinion is not certified for publication" if the opinion is long or controversial: Translation: Bury this turkey.
• "Jones v. Zilch is distinguishable." Translation: We don't like the result in Jones v. Zilch, and our case involves a black cow while Jones v. Zilch involved a brown cow.
• "In Doaks v. Doaks, we said" Translation: Our research attorney couldn't reduce the language to a concept or principle when read with other cases, and the whole thing is beyond us.
• "We respectfully disagree with the opinion of our sister division in Jones v. Smith. That case is roundly criticized by Professor Irving Schmidlap in his Podunk State Law Review article which we find to be persuasive." Translation: We don't like the result in Jones although it has been widely followed in the federal courts and courts of other states and is praised in leading law journals.
• "I respectfully dissent" Translation: The other judges are idiots.
• "I regretfully dissent." Translation: This is a chance to get even.
• "On petition for rehearing after we imposed sanctions for a frivolous appeal, counsel for appellant called to our attention our previous unpublished opinion in an unrelated case where we made the same argument we found to be frivolous here. We deny the petition for rehearing, affirm our original grant of sanctions and impose further sanctions for violation of the Rule of Court prohibiting citation of unpublished opinions." Translation: When we bury a turkey, it stays buried. Rule No. 1 is that we don't look bad.
• A Supreme Court opinion consists of four separate majority and concurring opinions and three separate concurring opinions. Translation: The justices can't find time to talk to one another, and none of them wants to irritate his or her research attorney.
Finally, public pronouncements by justices may be understood as follows:
• "We are a very collegial court." Possible translations: We can't stand one another, or we socialize and avoid arguments by not discussing cases.
• "We make every opinion of the court our own." Translation: But not necessarily what's in them.
• "There is no published indication of inconsistency in appellate court decisions and hence no need to explore the possibility of inconsistency in unpublished decisions." Translation: If the public found out that unpublished decisions are inconsistent, there would be a revolution.
• "We need more appellate court judges." Translation: The five-hour work day is too long, and there's plenty of room on the golf courses.
• "We are independent." Translation: We remember that the governor said that he expected judges to carry out his policies, and there may be an opening on the Supreme Court someday.
Robert S. Thompson, retired justice of the Court of Appeal, is the Legion Lex Professor of Law Emeritus at University of Southern California Law School.
By Robert S. Thompson
Appellate specialists know that appellate courts employ their own brand of terminology. This glossary translates appellate court phraseology for the benefit of the uninitiated.
Appellate courts in oral argument use these typical phrases:
• "We are intimately familiar with the record and have carefully studied the briefs." Translation: Our research attorney has drafted the opinion.
• "We're interested in logic, not argument." Translation: Our research attorney has decided against you.
• "Don't reiterate what's in your brief." Translation: I may be late for my golf game.
• The preceding sentence accompanied by, "You are not permitted to argue points not included in your briefs." Translation: The opinion has been written. I don't want to irritate my research attorney, and I'm really afraid I'll be late for my tee time.
• "The case is submitted, and our opinion will issue shortly." Translation: We'll hold off a bit filing the research attorney opinion to make it look like we considered the arguments.
The language in the written opinions may be interpreted as follows:
• "The learned trial judge" or "The experienced trial judge" when the trial court is affirmed. Translation: We haven't a clue. Let the trial judge take the heat.
• "The learned trial judge" when the judgment is reversed. Translation: That idiot.
• "The experienced trial judge" when the judgment is reversed. Translation: Senility has set in.
• "We condense the voluminous record to its essence." Translation: The research attorney has recited the record to support the conclusion we want.
• "We necessarily recite the voluminous record in detail." or "The controlling authorities are voluminous but must be discussed." Translation: We need a long opinion so we can sneak in the unsupported result we want without it being obvious.
• A combination of the prior two. Translation: The result we have to sneak in is off the wall.
• "We are controlled by Supreme Court authority." Translation: Let the Magnificent Seven take the heat.
• "This appeal involves a difficult issue of inverse condemnation." Translation: Abandon hope if you're the property owner.
• "This appeal involves a close issue involving state taxation." Translation: Abandon hope if you're the taxpayer.
• "The California Constitution demands the highest respect for individual liberty and protection against government intrusion on personal rights." or "The tort victim is entitled to be fully compensated and large punitive damages serve a vital public interest in deterring corporate misconduct." Translation: There are a Democratic governor and a possible future opening on the California Supreme Court.
• "While the California Constitution is protective of individual civil rights, the importance to a civil society of effective law enforcement cannot be overlooked." or "Tort victims are entitled to compensation but not overcompensation. Punitive damages are disfavored and must be limited proportionally to the actual damages lest they deter socially desirable economic progress." Translation: There are a Republican governor and a possible future opening on the California Supreme Court.
• "This is a case of first impression." Translation: Our research attorney wasn't able to make sense out of the mass of authorities.
• "This is a case of first impression" in an opinion not certified for publication. Translation: We love the result but can't support it.
• "This opinion is not certified for publication" if the opinion is long or controversial: Translation: Bury this turkey.
• "Jones v. Zilch is distinguishable." Translation: We don't like the result in Jones v. Zilch, and our case involves a black cow while Jones v. Zilch involved a brown cow.
• "In Doaks v. Doaks, we said" Translation: Our research attorney couldn't reduce the language to a concept or principle when read with other cases, and the whole thing is beyond us.
• "We respectfully disagree with the opinion of our sister division in Jones v. Smith. That case is roundly criticized by Professor Irving Schmidlap in his Podunk State Law Review article which we find to be persuasive." Translation: We don't like the result in Jones although it has been widely followed in the federal courts and courts of other states and is praised in leading law journals.
• "I respectfully dissent" Translation: The other judges are idiots.
• "I regretfully dissent." Translation: This is a chance to get even.
• "On petition for rehearing after we imposed sanctions for a frivolous appeal, counsel for appellant called to our attention our previous unpublished opinion in an unrelated case where we made the same argument we found to be frivolous here. We deny the petition for rehearing, affirm our original grant of sanctions and impose further sanctions for violation of the Rule of Court prohibiting citation of unpublished opinions." Translation: When we bury a turkey, it stays buried. Rule No. 1 is that we don't look bad.
• A Supreme Court opinion consists of four separate majority and concurring opinions and three separate concurring opinions. Translation: The justices can't find time to talk to one another, and none of them wants to irritate his or her research attorney.
Finally, public pronouncements by justices may be understood as follows:
• "We are a very collegial court." Possible translations: We can't stand one another, or we socialize and avoid arguments by not discussing cases.
• "We make every opinion of the court our own." Translation: But not necessarily what's in them.
• "There is no published indication of inconsistency in appellate court decisions and hence no need to explore the possibility of inconsistency in unpublished decisions." Translation: If the public found out that unpublished decisions are inconsistent, there would be a revolution.
• "We need more appellate court judges." Translation: The five-hour work day is too long, and there's plenty of room on the golf courses.
• "We are independent." Translation: We remember that the governor said that he expected judges to carry out his policies, and there may be an opening on the Supreme Court someday.
Robert S. Thompson, retired justice of the Court of Appeal, is the Legion Lex Professor of Law Emeritus at University of Southern California Law School.
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