A Phrase Judges Should Probably Avoid:
"In my humble opinion." Why? First, a lot of judges are not humble. Second, if their opinions really are humble, they probably don't need to point out how humble they are. True, the phrase "in my humble opinion" can be used as a signal of courtesy rather than humility. But I don't think that meaning comes across well in judicial opinions. Opinions usually are written in a confident style; the judge tries to make his decision seem indisputably correct. Given that, the use of "in my humble opinion" suggests a false humility rather than an earnest respectfulness. (Just a thought inspired by reading this concurring opinion , where a district judge sitting by designation in the 11th Circuit writes a concurrence arguing that "in my humble opinion," the Supreme Court's 8-1 directly on point decision from a few months ago was wrongly decided. It doesn't help that the district judge's interpretation of that precedent was pretty far off the mark).
What do readers think of referring to the trial judge as "the learned judge"? I've seen this done sincerely, to all appearances, but it does sometimes appear ironic.
In general, I think these expressions should be avoided. The trial court either erred, or did not err. The majority is correct, or it is mistaken. One actually may be less likely to tread on anyone's toes by being direct and to the point.
In concurring and dissenting opinions, however, it doesn't strike me as inappropriate across the board. Some concurring opinions are just expounding on some issue that's relevant but that doesn't need to be decided to dispose of the case, (E.g. McConnell's law review-type concurrence in Pruitt on reasonableness review after Booker). Others, while not disagreeing outright with the majority, suggest disposing of a case on narrower grounds and might "humbly" suggest that the broad rationale the majority adopts isn't necessary.
I think it's a phrase that can be appropriate in some judicial opinions, but it's probably abused fairly often. The suggestion that "we will live to regret" Scott v. Harris isn't a very humble one.
Fortunatey, it's used only rarely: in the Westlaw CTA database, I came across only about a dozen hits (other than quotes from the record, testimony, etc.)
That being said, wanna see a humble judge in action: peep Jack B. Weinstein of EDNY. Or as I know him, The Man.
That's right up there with "the Right Honourable Gentleman" as used to address someone on the other side of the aisle in the House of Commons. It's best translated as "that Scum-Sucking Bastard".
There was a WWII era New Yorker cartoon, in which a fascist dictator, surrounded by armed guards and missles, is addressing a meeting. The caption is "And I think I may say, without fear of contradiction..."
I am not an attorney so probably my understanding of what a Judge should write in an opinion is probably naive. As said above it is apparent Judge Presnell disagreed with SCOTUS in Harris. Because that set the precedent he was obliged, and correctly did so, to follow the law. But it seems to me the place for his dissent would be more appropriate before a legislative body discussing the issue. My question, is it fairly routine for a judge to record his disagreement with a law in his written opinion?
Are you my boss posting anonymously? I put in "clearly" all the time (partially because we dictate and its the sort of thing I would note in oral argument). He takes it out every time.
Stating, on the record, that a superior court got it wrong, is never humble. It may be accurate, but it is never humble.
I hear people say that, but I don't think it's a good rule of thumb.
I had a co-clerk who would take pleasure in making fun of practitioners who used the word "clearly". In several cases, I thought the word was accurately used. So, I developed the impression that my co-clerk was mean-spirited and intellectually lazy.
In my humble opinion, there is nothing wrong with using the word "clearly" when (1) the point is actually clear, and (2) you think it helps the meter of the prose.
Of course, that also can paper over a distinct absence of respect. Does any dissenting judge ever say with more candor, "I angrily and didactically dissent?"
I did recently read a dissent that concluded, "I strongly dissent."
Chuckle... for a time (maybe still) Justice Dept HQ could not write a brief that did not use the phrase "this is a quintessential case of" at least once.
And I've seen many of use of "on all fours," when the better reference would have been "cf.".
If a dissent takes personal shots at the majority judges and is extremely disrespectful, such that the phrase rings false, then the problem is likely with the dissent, not the phrase. On the other hand, if the dissenting judge truly believes that the majority opinion is undeserving of any respect, then the phrase shouldn't be there.
AK, I respectfully disagree with this statement. But rather than explain why (as others have well articulated), I'd rather explain the reason behind my first sentence (which I would've written regardless of it being the topic of discussion). Warning: I will pepper my attempts at good English with my first language, street slang. So bear with me.
I usually express my disagreements this way to distinguish myself from those: who write just to put someone else down; who just want to let the other person know how wrong or dumb they are; who write only because they’re obsessed with their own perceived brilliance; etc. A great example are those who begin their response to comments with “Um….” What the fuck is “um?” I’ll tell ya: it’s what little bitches say in order to put down others despite the fact that if they said it in person they’d get snuffed for being so smug. But since they have the protection of their computer screens, they feel free to belittle others and use vicious sarcasm because it bolsters their fragile egos. I ain’t one of them, and hopefully they’re the minority on this site.
By saying I “respectfully disagree,” I’m acknowledging to the people to whom I respond that I am not trying to one-up them; that I’m not trying to show that I’m smarter or better educated or the better lawyer. So it’s my attempt to say “I come in peace” and that my only interest is to engage in an interesting debate.
It is generally not a good idea for a sitting judge to appear before a legislature advocating particular changes in the law as it makes it a bit awkward when parties appear before him on the very same issue. There's an exception for issues related to judicial administration, like the rules of civil procedure.
It's not common for a judge to say something like "Decision X is wrong but it's binding so I have to adhere to it anyway." There is a legitimate basis for writing something like this though. Sometimes the judge will have a strong sense that the binding decision is going to be overruled, e.g. when it's really old, a bunch of other jurisdiction have rejected that old rule etc.. In that case it's legitimate for him to say "Decision X is binding and so I apply it, reaching result A, but if X were not the rule, then for these reasons I would reach result B." That helps the appellate court see the full landscape when they decide whether to overrule X.
Your post reminded me of Judge Bybee's dissent where he began his second paragraph with:
Smith v. Baldwin, 466 F.3d 809, 829 (9th Cir. 2006). Several sentences later, the paragraph ended, "I therefore respectfully, but vigorously, dissent."
Judge Bea similarly stated in a dissent:
Plumlee v. Del Papa, 465 F.3d 910, 925 (9th Cir. 2006). Several paragraphs later, Judge Bea added, "For those reasons, I respectfully dissent."
I am not sure which, if either, Judge was being sincere and which, if either, Judge was being sarcastic when he stated, "I respectfully dissent."
(As a side note, both Judge Bybee and Judge Bea must feel some sense of vindication since both cases were ordered to be reheard en banc).
Can you please explain why, in your humble opinion, the concurring judge's intrepretation of Harris is wrong?
In my humble opinion, he did not state that Harris was wrongly decided; I took him to mean that while Harris might have arrived at a correct conclusion under its facts, Harris' "balancing" test is not really balancing anything; realistically, it simply makes it almost always reasonable for an officer to use deadly force against the suspect to end a car-chase. Where I am going wrong? (See, I am trying to be humble ;) Thanks.
Well, you did clerk for Kennedy; you would know! ;)
Thanks for link. In a very brief dissent, Judge Barkett started with "I dissent" and ended with "Therefore, I dissent" with nary a "respectfully" to be found in her opinion.
Elementary usage error. Sure, some propositions *are* clear, so that "clearly" could be used properly.
BUT, knowing that it's so often used incorrectly ... and that a substantial number of readers suspect any "clear" proposition of being the opposite ... why raise the red flag?
It doesn't matter what's correct, it matters what effect you create.
When it's done, it's usually done more lucidly than in the Beshers concurrence. Given the prevalence of liberal arts backgrounds, ignorance of basic science is common amongst lawyers and judges alike. (I recall being shocked to learn in early years of practice how many judges could not grasp the principle that a chemical reaction does not merely produce a mixture of the original chemicals.) But one does not often see such appalling ignorance of basic physics so arrogantly put on display as in Judge Presnell's opinion. For the sake of highway safety in the middle district of Florida, I certainly hope he has a chauffeur.
When a legal proposition is clear, you can tell because a brief will state the proposition, then cite to a decision from the controlling jurisdiction handed down last Tuesday establishing that proposition. When a proposition is well settled, a second cite to a decision from the controlling jurisdiction handed down forty years ago is added.
(PDF link above is decision in California Supreme Court appeal of Justice McComb's removal from the Court by the State of California Commission on Judicial Performance.)
Scalia's rule was that "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."
Presnell's restatement of what that means: "Unless the chase occurs below the speed limit on a deserted highway, the use of deadly force to end a motor vehicle pursuit is always a reasonable seizure."
But those two are very different. There are a lot of chases that do not constitute "a dangerous high-speed car chase that threatens the lives of innocent bystanders" other than those "below the speed limit on a deserted highway." There are chases at high speeds on lightly travelled roads, or at the usual speeds such as 5 or 10 miles an over in normal traffic.
The Scott rule is only for those chases that satisfy the test of being "dangerous high-speed car chase[d] that threatend[] the lives of innocent bystanders," and it seems way off the mark to equate that with any chase other than those "below the speed limit on a deserted highway." Scalia used those qualifiers carefully, and it seems off the mark to ignore or minimize them.
In terms of the original post, if ever "In my humble opinion," would apply to a judicial decision, I would think it would be this one where the judge disagrees with a Supreme Court case on point but nevertheless follows and applies it. That said, I think if you are going to say anything at all you should just say it like it is: pop in a footnote that says "In my opinion, Scott v. Harris was wrongly decided." Then everyone can safely ignore it and you, having made Your Big Announcement, can sleep at night. I think Orin's original point is accurate, there is little "humble" about completely disagreeing with an 8-1 Supreme Court decision and announcing that we will live to regret it. I think you could surely write "I respectfully believe that Scott v. Harris was wrongly decided, and we will regret that decision" or something like that. Judges are supposed to say what they think, and if you really believe some case was decided wrongly, you should say so. But there's nothing humble about it.
In any event, I'm glad Orin posted to this, because this must be one of the first cases construing Scott v. Harris, no? I see that The Videotape made another strong showing here. From footnote one:
I still think Stevens' point about reviewing the videotape to make de novo factual review was a pretty novel development in Scott v. Harris, and at least deserved more than the footnoted mention Scalia gave it. Stevens' point about the eight "jurors" in the case was still a good one. (I'm not saying that decides the case or meant it was wrongly decided - Orin had a post talking about how their facts were not so different - but the videotape thing I still find odd, kind of funny, and possibly even troubling.)