A few years ago, I attended an oral argument with a colleague. (He was there to argue a substantive motion in our case, I was there to take on the class-related issues.) It turned out we were in front of a hot bench that day: the judge clearly had formed several opinions of the case, and was not shy about peppering both plaintiff and defense counsel with questions–some seemingly out of left field–that forced each to justify his case. His approach clearly shook both sides a little. As we left without a decision on our motions, my colleague shook his head: "I just don’t know what he was thinking," he said.
It’s a common challenge among lawyers: what is my judge thinking? And it’s a vital one; after all, if we know what a judge is thinking, we can better persuade him to rule in our favor. But most judges, while they reveal some of their thought processes during oral arguments and in orders, seem more opaque during the briefing process that takes up so many lawyers’ time.
In his 2008 book How Judges Think, Judge Richard Posner of the Seventh Circuit Court of Appeals pulls back the curtain to give people a glimpse of–if not what a given judge is thinking, at least how he gets there. Why listen to Judge Posner? Leaving aside his long and accomplished record, he’s a judge, and he consorts with other judges. And, as an appellate judge, his job is to second-guess trial judges. If anyone has an inside track on how judges think, it’s probably him. How Judges Think has obvious benefit for lawyers. If you know how they think, you know how to best pitch your arguments.
So, what are Posner’s main points?
Judges are not law professors, but they are part-time legislators. Given the way the common law works, particularly in the United States, judges frequently find themselves making what one might consider "legislative decisions" when deciding cases. (For example, when a judge distinguishes a previous case, he’s usually providing a new rule, however specialized. To take an ancient example, the common law used to take any threatening gesture to be an assault, until someone put his hand on his sword–a threatening gesture–and growled that if it weren’t the day the judges were in town, there would be trouble–seriously undermining the threat. New facts, new rule: saying you won’t commit assault negates a threatening gesture.)
Judges engage in this kind of rule making without the benefit of specialized knowledge. Heavy caseloads mean don’t have time to be experts in the various subjects that come before them, even–some of the time–the substantive law. (This is not a slam on judges’ intellectual abilities at all. Mastering a specific legal discipline takes time and focus. Federal trial judges often have to pivot in the course of only a few hours between criminal sentencing, deciding a motion to dismiss a complex intellectual property case, and mediating a dispute involving the proper bounds of bifurcation of class discovery. That requires a lot of brainpower, but it does not allow the time for specialization.) As Judge Posner puts it:
No judge of [a federal court of appeals] can be an expert in more than a small fraction of the fields of law that generate the appeals he must decide, or can devote enough time to an individual case to make himself, if only for the moment (knowledge obtained by cramming is quickly forgotten), an expert in the field out of which the case arises.
Moreover, while professors worry about originality, judges worry about productivity. Or, as Walter Dellinger used to tell young lawyers:
A law professor’s job is to say "Look at this; no one’s ever argued this before." A lawyer’s job is to take the same argument and say "Do this; it’s how we’ve always done it."
In general, Judge Posner’s chapter on legal academia ("Judges Are Not Law Professors") is well worth a read. He makes a lot of the same criticisms of academia that other judges have, but his dual role as prolific judge and prolific scholar gives those critiques some added oomph.
Judges have different external constraints from most of us. Article III judges are appointed for life, guaranteed a generous pension, and extremely difficult to remove once installed. (Leaving aside the political difficulty involved in impeachment, it is difficult to measure judicial output in a politically neutral fashion.) So they don’t worry about getting fired, or making lots more money. (Though they would really like their cost-of-living adjustments.)
So what do judges worry about? They worry about handling their current cases as well as they can, clearing their backlog, and not getting reversed.
So backlog pressure keeps him working hard and reversal threat keeps him working carefully — though an alternative strategy is to push the parties to settle, since settlements reduce backlog without risk of reversal.
(Here, Judge Rosenthal may disagree with Judge Posner; she thinks judges aren’t as concerned about settlement anymore.)
Judges are people, but they have an extra set of internal constraints. What does this mean? It means that, like other people, judges ultimately can’t outrun their prejudices.
A judge’s personal background characteristics, such as race and sex, and his personal and professional experiences are among the nonpolitical, nonlegalist factors that have been found to influence his decisions.
In particular, given the grinding politics of the appointment process, judges are unlikely to be apolitical.
So, apart from the play of unconscious influences, we cannot expect federal judges to be complete political eunuchs, their decisions never influenced by politics because they have no politics. Such political neuters are unlikely to be appointed.
(Elected judges are more clearly affected by politics, for what should be obvious reasons.) According to Judge Posner, judges mostly use these intuitions as "tiebreakers." In other words, it’s unlikely a lawyer can get a judge to ignore material facts or law, but in close cases different judges will lean in different ways.
That said, judges do face one important set of internal constraints. According to Judge Posner, judges are united in their use of "legal reasoning"–in particular analogy and distinction–keeps them from going too far afield. So does their sense of "common sense," which Posner explains as a healthy aversion to appellate reversal or legislative reprisal. (He doesn’ mean judicial pay cuts, he means legislative responses like the Lily Ledbetter Act that functionally reverse a court ruling.)
So, based on all of this explanation, what specific practical advice can the class-action lawyer take?
- Don’t be afraid to argue policy. Judge Posner refers to these policy arguments as "legislative facts," arguments about the effects that any common-law rule making will have. While they’re especially persuasive to appellate judges, trial judges care about them too, especially during pretrial motions. And these kinds of "legislative facts" are particularly important in class-action litigation, where even small legal rulings have the potential to affect thousands (if not millions) of putative class members.
- Keep it simple. Judges aren’t stupid, but they are pressed for time. The more a lawyer can help them master the material in front of them, the more persuasive that lawyer will be. (This is one of the reasons why–despite some lawyers’ arguments otherwise–it’s rarely a good idea to write "kitchen-sink" briefs.) This is particularly true in class-action litigation, which often overlays a complex procedure over complex substantive legal principles.
- Where possible, play to the judge’s priors. After all, you don’t always know where the close calls will be, and you want to get the benefit of the doubt in those places.
How Judges Think is well worth the read. And–along with Economic Analysis of Law--it’s destined to be one of Judge Posner’s most influential books. This is a book that should be on every practicing lawyer’s shelf.
[Disclosures: When I was a student long ago, I worked on a number of Judge Posner’s books. Also, despite the quotation marks, Professor Dellinger’s statement is my best reconstruction rather than a direct quote.]