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75 N.Y. St. B.A. J. 39 (2003)
Role of Trial Court Opinions in the Judicial Process, The

handle is hein.barjournals/nysbaj0075 and id is 425 raw text is: View From the Bench The Role of Trial Court Opinions In the Judicial Process By JOHN B. NESBITT hy should trial court judges write opinions? The question arose at the National Judicial College last summer. As the instructor in a seminar on logic and legal reasoning explained the rules and fallacies associated with categorical, hypothetical and disjunctive syllogisms, I took notes for later study. A Minnesota trial judge of obvious experience and con- fidence sat nonplussed with his arms folded across his chest. When we spoke at a break, he smiled and said, You know, John, we were elected to make decisions, not explain them. Don't over-think this stuff. This recalled remarks a New York State Supreme Court justice made at judge school held shortly after I was elected. Extolling the virtues of short bench rulings, the justice drove home his point with the aphorism that one should not write when one can talk, and not talk when one doesn't have to. All this I had already heard at the feet of retired Court of Claims Judge Robert M. Quigley, who embraced (with tongue in cheek) the maxim - scriptum manet - that which is written remains. For, as Lincoln taught us, it is better to be thought a fool than to open one's mouth and remove all doubts. Levity aside, serious practical considerations dis- courage opinion writing on the trial level. Perhaps fore- most is the time and effort needed to do an adequate job. In private practice, lawyers spend much of their time preparing, assembling and composing writings to per- suade others. Trial judges have their hands full just di- gesting this material, much less explaining it. Some of it, such as unfiltered transcripts, other written evidentiary materials and even the judge's own notes, often does not easily yield the relevant information without culling the extraneous and making some interpretive effort on what remains. The pace of the proceedings may be such that the trial judge cannot expect the lawyers to produce the type of memorandum of law or brief one could ex- pect at the appellate level, drafted after sitting down with a settled record, greater opportunity to fully re- spond to opponent's arguments, and the benefit of ade- quate time to draft and polish the perfect brief. Finally, these hurdles aside, when the trial judge does write an opinion, do the lawyers and litigants really care about anything except the result? In most cases, proba- bly not. Institutional Obligations Nevertheless, there are some very good reasons for doing a written opinion notwithstanding the time taken away from other cases and the lack of interested audi- ence.1 Two involve the judicial bottom line. First and certainly foremost, some form of explana- tion is often obligatory - it's part of the judge's job de- scription. Statutes in many cases dictate at least a state- ment of the essential facts found, given the unique function of trial judges as fact finders in non-jury cases.2 Any litigator or trial judge knows that credibility as- sessments depend as much on how the testimony or ev- idence is presented as well as what is presented. A cold record on appeal cannot preserve the dynamics of the trial or proceeding that reflect upon the veracity of wit- nesses or probative value of exhibits and other evi- dence.3 A trial judge's decision can and should do so in making the findings on contested issues of fact.4 Second, much of a trial judge's job involves discre- tionary decisions. By this I do not mean to join the de- bates of the meta-thinkers of jurisprudence, Hart, Dworkin, Posner, etc., regarding whether law qua law is inherently a discretionary discipline; I have something much more pedestrian in mind. In many areas of law, such as child custody determinations, no system of de- ductive logic will take you very far in reaching a result. These are basically on-balance, totality-of-circum- stances judgments, with some guidance from the pre- sumptive, defeasible type of general propositions that provide a conceptual framework or angle of vision for a judge to use in thinking about the problems presented. Journal I September 2003

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