Anthony D'Amato
Anthony D'Amato
(Courtesy: Northwestern Law School)

“Every practicing attorney with whom I have discussed the matter of lack of judicial candor has told me of at least one case when it clearly happened to him or to her, and some say that the practice is unfortunately quite common. What good is adversarial argument, one of them asked, if a judge can play God with the facts of a case?  Some attorneys have told me that if they had known that the practice of law would be like this, they would have chosen a different profession.  (They also invariably add that they are themselves in no position to blow the whistle for fear of retaliation by the judge they criticize or by the judge's colleagues.)  Surely when a critical fact is proved and undisputed at trial, the whole legal world seems to crumble when the losing attorney sees no mention of the fact in the judge's written opinion or sees that the judge relied explicitly on a contrary unproved "fact."  Hardly anything could be more unfair.”

“Arguably there is an incentive in the judicial system to misstate the facts of a case.  Judges hate to be reversed; many grade their own performance by how small a percentage of their cases are reversed on appeal. By misstating the facts of a case — if misstatement is necessary to "justify" a desired result — a judge can all but ensure that her decision will not be reversed on appeal.  Higher courts are uninterested in retrying disputations about facts; they are only interested in "law."  They will be impatient with arguments of counsel that the facts were otherwise than as found by the trial judge.  They say repeatedly that they have no time to plunge into the morass of fact-determination.  Hence, a judge who invents or misstates a critical fact in favor of the party to whom she decides to award the decision may well have high confidence that her decision will thus be insulated from reversal by a higher court.”

From: Anthony D'Amato, "Self-Regulation of Misconduct Could be Mis-Regulation," Michigan Law Review, Vol. 89: 609 (1990).

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