The Consciousness of the Litigator

2. The Judicial Process

CHAPTER TWO The Judicial Process The parties that lawyers represent—say, a corporation, a government agency, a spouse, or a landlord—may be at a given time in con›ict with other parties—another corporation , a private business, the other spouse, a tenant. The con›ict is an indication of disorder. Moreover, the interests in which lawyers represent parties—the pursuit of money, of some new advantage, of some vision of the way things ought to be, or of some other satisfaction—if realized, change the social order in some way. Even pursuing such interests upsets the social order. In the United States, the forum to which parties resort for resolution of con›ict, for clari‹cation of rights and responsibilities toward each other, is the courts. Private parties and the government bring con›icts to the courts in the form of lawsuits. The case or lawsuit frames the con›ict as a legal issue or several legal issues. The court resolves the con›ict by resolving the legal issues— by determining the facts and the applicable rules of law and then applying the rules to the facts. A rule of law is a standard of conduct or a formulation of a social relationship that carries the legitimate authority of the state. Either a judge or a jury, depending on the situation, determines facts, but only judges determine the rules 39  that apply and how to apply them. With respect to a given legal issue or the entire case, the court issues a decision, often in written form. The decision announces the outcome and, typically, the reasons for it, including a statement of the facts, the legal issue or issues, and the applicable rules of law, as well as a discussion of the application of the rules to the facts. The question of how judges decide cases and legal issues—how judges determine what rule to apply in a particular situation and how to apply it—has preoccupied lawyers, litigants, politicians, and other students of law for as long as courts have adjudicated disputes. William Blackstone’s Commentaries on the Laws of England , ‹rst published in 1765 through 1769, popularized the understanding that the law preexists and judges ‹nd it. Blackstone’s purposes in delivering the Commentaries included demonstrating the superiority of the common law to a civil code system and establishing the common law as a legitimate ‹eld of academic study. To this end, he promoted the view of the common law as a science .1 This science is rational not in the sense of formal logic or of a superimposed order, but as an organic system developed through history. The common law does not engineer social life but grows out of it. Underlying the cryptic and rigid forms of pleading and the mass of accumulated court decisions, Blackstone explained, is an identi‹able system of substantive rules, of “customs” and “maxims.” The reason of the rules lies in their derivation —from social life itself. “But here,” Blackstone observed, “a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the law; the living oracles, The Consciousness of the Litigator 40
who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.”2 Court decisions are not the law but are evidence of the law.3 The judge cannot change the rules of law. For it is an established rule to abide by former precedents, where the same points come again in litigation: as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.4 If a prior judicial decision is “most evidently contrary to reason...