The Limits of Judicial Knowledge and the Importance of Briefs

Linda Greenhouse has this very interesting op-ed in the October 30th New York Times where she asks:

How do judges — especially appellate judges, who don’t hear witnesses or take testimony but must rely on the record compiled in the courts below — learn what they need to know? And, of course, how do they — or any of us — choose what to make of the knowledge they have?

Greenhouse surveys a number of cases, ranging from the Supreme Court's determination in Kennedy v. Louisiana that there was a national consensus against child rape -- citing Congress's failure to add child rape to a list of federal capital crimes over a decade earlier (and missing Congress's two-year old decision to make child-rape a capital crime in military cases), Judge Richard Posner's admission that he lacked full knowledge of the consequences of his decision in the voting rights case, Crawford v. Marion County Election Board, and Justice Scalia's admission that he lacked the knowledge of genetics necessary for him to join the Court's statement of facts in Association for Molecular Pathology v. Myriad Genetics.

I will admit that what drew me to the opinion was Greenhouse's mention of Kennedy v. Louisiana. The oral argument this case was portrayed in the fictional case, Serra v. Louisiana, in one of my favorite Boston Legal episodes, "The Court Supreme" (Season 4, Episode 17; transcript available here).

But as I continued past the initial Kennedy hook, I found that I was reminded of an article I read a while back that is forthcoming in the Emory Law Review. That article is Scott Moss's, Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs’ Briefs, Its Impact on the Law, and the Market Failure It Reflects (Lexis seems to indicate that the article has been released, giving the citation, 63 Emory L.J. 59, though the article is not yet available on the article's website).  Here is the abstract (from the version I found on SelectedWorks):

For a major field, employment discrimination suffers surprisingly low-quality plaintiff’s lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs’ briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for won/loss rate, bad plaintiffs’ briefs far more often yield decisions crediting debatable defenses. These findings are puzzling; in a major legal service market, how can clients persistently choose bad lawyers, lawyers persistently perform so poorly, and judicial and ethics authorities tolerate this situation? Answers include poor client information, ethics authorities’ limited ability or will to discipline bad lawyers, and two troubling lawyer behaviors: (1) overoptimistically entering the field without realizing, until suffering losses, that it requires intensive research and writing; and (2) knowingly litigating on the cheap, rather than expending briefing effort to maximize case value, because contingency-paid lawyers may profitably run “mills” living off quick small settlements. A survey of the worst brief writers’ law firms hints the problem may be a mix of the former (non-specialists in over their heads) and the latter (knowingly litigating cheaply). This Article offers reforms that, while no cure-all for a problem tracing to stubborn market forces, could help: (1) expanding educational efforts, including law school experiential learning, bar resource-sharing, and bar exam reform; (2) enhancing client access to information on lawyers, by liberalizing ethics rules restricting expertise claims and public access to court files; (3) broadening the supply of competent lawyers, by liberalizing ethics rules on corporations owning law firms and by rules restricting the standing to sue of discrimination “testers”; and (4) toughening ethics enforcement against the worst offenders, who almost all go unpunished now.

While Moss's empirical findings were limited to labor law cases, one of the larger lessons of his article seems to apply to Greenhouse's concern: the worry that bad briefs skew the evolution of case law by leading to bad decisions.  As Greenhouse notes -- the Supreme Court missed Congress's law making child rape a capital offense in military cases because nobody included that point in the briefs.

This case might be an outlier for the Supreme Court.  After all, most cases before it are extensively briefed and there are often many lower opinions to draw upon that consider the various arguments and relevant facts.  That said, briefs are still important even before the highest court to illuminate all the issues, especially in cases that involve "arcane" subject matter.

But at the lower court level, Greenhouse's concern is even more pressing.  There, courts have far heavier caseloads and less time to investigate difficult questions of facts and law.  While mistakes may be overturned on appeal, this process is costly, time-consuming, and is not a guaranteed solution.

While Greenhouse is correct to note that judges should account for their limited knowledge -- the onus is not entirely on the judges here.  Attorneys who submit arguments at any level must be aware of the limits of the judiciary and the importance of briefs that are thorough and accurate.