Judicial Accountability in England and the United States

by John P. Messina

Judicial Accountability in

England and the United States

England and the United States share the same common law tradition, but they have different views on how best to achieve judicial accountability. The English believe that judges are not fully accountable unless litigants can witness all phases of the litigation and decision-making process. Americans believe that “accountability depends, not upon being able to see a judge decide a case, but upon being able to read a fully-reasoned judicial opinion explaining the basis of the judge's decision.”1

A.England’s “speech-centered” system.

The English legal system is “speech-centered.”2 At the trial level “there is no role at all for a written brief.”3 Indeed, over the last 700 years “[t]he only significant deviation from the oral tradition in trial practice…is the replacement of oral with written pleading, which took place during the sixteenth century.”4 Trial judges “spend most of their time in open court conducting and deciding formal, adversary proceedings, with correspondingly little time in chambers working alone. [They] make and announce decisions orally in open court, write few opinions, and deal directly with litigants and with witnesses….5

English appellate courts are equally bound to oral advocacy. Barristers do not file comprehensive written arguments prior to oral presentation. Instead, they inform judges about the record and the law during oral arguments, which last from several hours to several days.6 “It typically takes an English barrister three or four hours to identify key issues in a case.”7 The informing function of oral argument means that “a relatively small percentage of the time is devoted to actual advocacy.”8

1Suzanne Ehrenberg, Embracing the Writing-Centered Legal Process, 89 Iowa L. Rev. 1159, 1194-95 (2004) [“Ehrenberg”] See also id. at 1164 (“the written opinion is perhaps the most powerful method of holding the judiciary accountable because it shows the litigants the reasoning process employed by the judges deciding the case.”)

2Ehrenberg at 1163.

3Id. at 1162.

4Id. at 1174.

5 Daniel J. Meador, English Appellate Judges from an American Perspective, 66 Geo. L.J. 1349, 1370 (1978) [“Meador”].

6Robert J. Martineau, APPELLATE JUSTICE IN ENGLAND AND THE UNITED STATES 120 (1990) [“APPELLATE JUSTICE”].

7Ehrenberg at 1194, citing APPELLATE JUSTICE 120, 123-24.

8Ehrenberg at 1194, citing APPELLATE JUSTICE 121. Only in 1989 did the Court of

Appeal, in an attempt to streamline the oral argument process, require barristers to file a written “skeleton argument” prior to oral argument. The drafters of this requirement

Respondent’s Ex. 1-D

B.Oral judgments—the “centerpiece of the English appellate practice.”

A most impressive feature of the English system is the issuance of extemporaneous oral judgments after oral argument. In rendering such a judgment “the presiding judge will, with minimal or no preparation, present a remarkably organized, coherent speech lasting from thirty to sixty minutes. The judge will typically state at length the facts of the case and the issues that have been raised. He will explain how the court is deciding the case and give a brief explanation of why he reached his decision….”9

For more than 600 years extemporaneous oral judgments have been a “centerpiece of the English appellate process”.10 As recently as 1978 they were described as the norm.11 In the early 1990s the Court of Appeal began to “move away from the tradition of ex tempore judgments and will generally ‘reserve judgment,’ i.e., delay making a decision and articulating reasons for it.”12 However, ‘[e]ven where a judgment is reserved, the oral tradition persists to the extent that the justices will issue their opinions orally in court after their period of deliberation.”13

Daniel J. Meador, a preeminent scholar of appellate practice in England and the United States, describes the collective impact of the ex tempore judgment as “impressive:”

When all three judges have finished speaking, an onlooker in the courtroom, whether or not he agrees with the result, is left inescapably with one distinct impression: each of these judges understood the facts and the law involved in the case and reached an informed decision on his own. The total impact of seeing justice done in this highly visible way is difficult to appreciate by one who has not seen it and who is familiar only with the much different style of American appellate proceedings. One cannot help thinking such visibility makes the decision more acceptable to the loser.14

C.The rationale for England’s oral tradition.

Ehrenberg sums up the English commitment to oral advocacy this way:

emphasized that skeleton arguments “are intended to be only ‘a very abbreviated note of the argument and in no way usurp any part of the function of oral argument in court.’” Ehrenberg at 1168. Similarly, the Appellate Committee of the House of Lords only recently required an argument summary known as a “case” be filed prior to oral presentation.

9 Id. at 1169.

10Id.

11Meador at 1370.

12Ehrenberg at 1169.

13Id. at 1170.

14Meador at 1367.

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Informed by the principle that justice must be seen in order to be done, each step of the litigation process at both the trial and appellate levels has historically taken place in open court. The public is able to observe not only the presentation of evidence and counsels’ legal arguments, but also, in some cases, the judges’ deliberations and the announcement of their decision.15

D.The United States’ “writing-centered” system.

“Early appellate practice in the United States was conducted almost exclusively on an oral basis…. Oral arguments lasting several days were not uncommon.”16 However, a convergence of circumstances made it difficult for the oral tradition to take permanent hold in the United States:

First, there was a shortage of attorneys trained as oral advocates. The bar largely consisted of persons who earned their license by “reading the law” in the office of a practitioner.17

Second, the sheer size of the country meant that individuals had to travel great distances to participate in government. The written and printed word became an important means of governmental communication. Courts came to rely on written or printed word as a means of communication between lawyers and judges who were separated by great distances.18

Third, the increasing availability of typewriters and commercial printers facilitated the movement to written communication.19

The earliest known writing requirement came in 1795, when the Supreme Court promulgated a rule requiring attorneys to submit “a statement of material points of the case.”20 In 1821, the Court expanded this requirement to “a printed brief[21] or abstract…containing the substance of all the material pleadings, facts, and documents…and the points of law and facts intended to be presented.”22 The papers submitted in accordance with this requirement “did not resemble our modern

15 Id. at 1167.

16 Ehrenberg at 1179, citing R. Kirkland Cozine, The Emergence of Written Appellate Briefs in the Nineteenth-Century United States, 38 Am. J. Legal Hist. 482, 483 (1994) [“Cozine”].

17Ehrenberg at 1179-80.

18Id. at 1180.

19Id. at 1180, citing Robert J. Martineau, The Value of Appellate Oral Argument: A Challenge to Conventional Wisdom, 72 Iowa L. Rev. 1, 9 (1986).

20Ehrenberg at 1180, citing Sup. Ct. R. 8, established in 3 U.S. (3 Dall.) 120 (1795).

21. In England, “brief” refers to the document that a solicitor gives to the barrister who will be arguing a case for the solicitor's client. The Supreme Court’s 1821 rule may be the first instance of “brief” as referring to an appellate document Ehrenberg at 1180.

22Ehrenberg at 1180.

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appellate briefs; they generally contained only a list of points with no actual argument.”23

In 1833 the Supreme Court gave parties the option of submitting a case on basis of written argument in lieu of oral argument.24

E.The diminishing importance of oral argument

The “clearest sign” that the United States was abandoning the oral tradition

came in a series of rules reducing the time for oral argument. In 1849 the Supreme Court promulgated a rule limiting each attorney in the case to two hours of oral argument. Nine years later the Court imposed a limit of two attorneys per side, thereby reducing oral argument to maximum of eight hours. In 1871 the Court cut total argument time in half, to a maximum of two hours per side.25

The tightened time limits on oral argument provided a catalyst for attorneys to develop more sophisticated written arguments. By the end of the nineteenth century, “most of the written briefs filed in appellate courts…became more sophisticated, more intellectually rigorous, and more persuasive. They engage in a serious discussion of legal authorities, and make use of narrative techniques and hypotheticals and policy arguments, as well as emotional appeals.”26

By the end of the nineteenth-century, the brief had replaced oral argument as an appellate court’s principal means of learning about a case, with oral argument as a supplement.27

The oral judgment that is a hallmark of the English appellate tradition never gained a solid footing in the United States. “Almost from the beginning, the written opinion has been a prominent feature of appellate review in the United States. U.S. appellate judges, unlike their English counterparts, had little or no experience rendering oral opinions as trial judges and were not necessarily skilled as oral advo cates.”28

F.The rationale for the United States’ writing-centered tradition.

Ehrenberg argues that the “key distinction between U.S. and English legal cultures…is the manner in which they seek to achieve accountability.”29

Litigants believe they have a right to know not only what decision a court has reached but how the court has reached that decision. The fully-reasoned

23Id.

24Id. at 1181.

25Ehrenberg at 1181-82.

26Ehrenberg at 1183, citing Cozine, supra note 16, at 522-23.

27Ehrenberg at 1183.

28Id. at 1184.

29Ehrenberg at 1163-64.

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judicial opinion shows litigants that their arguments have been considered, even if those arguments were ultimately rejected. Moreover, the written opinion is perhaps the most powerful method of holding the judiciary accountable because it shows the litigants the reasoning process employed by the judges deciding the case.30

Ehrenberg argues that the judiciary becomes truly accountable only when “a judicial decision is fully reasoned and widely accessible to the public.”31 A written opinion satisfies this test in a way that an oral judgment cannot.

30Id. at 1194-95.

31Id. at 1195.

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