Reversing rulings

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IN the judge's mailbox lay a just-released opinion from his state's Supreme Court, an appeal of a decision he had rendered 15 months ago. Picking it up, he flipped immediately to the last page. That is the way all trial judges read the Word from On High: First the end, to learn whether the judicial aristocrats approved or disapproved. Only then does a trial judge really read an opinion. No trial judge worth his salt, said the late federal jurist, Charles E. Wyzanski Jr., ever worries about being reversed. Another Massachusetts judge expressed his indifference more vigorously. Hearing a colleague congratulate him for receiving Supreme Court affirmance, he replied shortly, ``I still think I was right.''

At the risk of revealing lodge secrets, let me assure you that this is all bravado. Every judge intensely dislikes reversal.

Like the pitcher who never forgets the sequence of plays that cost him a deserved victory, the good trial judge will lay out for you all the details of the case in which he was ``tipped'' - and all the points the upper court completely failed to understand.

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Although many appellate judges, some of whom came from the trial courts themselves, would agree with Judge Frank M. Coffin (of the US Court of Appeals for the First Circuit) that the reviewing court should give the trial judge's decision ``conscious and controlled deference,'' many of the judicial foot soldiers tend to agree with another federal appellate judge's self-description:

``We come onto the battlefield after the fighting is over; and then we shoot the wounded.''

Appellate courts, by the nature of their work, receive plenty of time to consider detailed arguments, thoroughly supported by well-researched briefs. Speaking at a dinner which the Massachusetts Supreme Judicial Court attended en banc, Edgar Sherman, a turn-of-the-century Superior Court judge, reminded his seniors:

``We have to decide our questions on the instant; we have to shoot our game on the wing; and the Supreme Court have an opportunity to put their guns at rest, to take plenty of time, and have able lawyers to show them how to shoot. So you must be charitable to our judges.''

Like most people, a judge does not like to hear that the folks ``upstairs'' think her or his work product lacks excellence. The discomfort heightens because upper-court criticism takes a permanent, published form. For all legal eternity, anyone reading the printed decision will know the appellate justices' displeasure - and the trial judge's chagrin.

The root of the difficulty, however, is the feeling that the high court just does not understand what is going on in the ``pit,'' the trial arena. Here again, trial judges behave like members of any specialty, insisting that only one of their own can possibly appreciate the unique agonies that life in the Club entails.

Understandable though this may be, and despite my own frequent humming of its plaintive melody, the fact is that the appellate judges do appreciate the reality, ours as well as theirs. The very nature of their task, however, forces on them a detachment which to a trial judge often appears disdainful or ignorant.

In truth, it is neither. Whereas the trial judge necessarily focuses almost entirely on the result of the immediate case, the appellate court must fit the litigation into an entire pattern. It must concentrate to a far greater degree on the correctness of the process. Thus, what a trial judge deems nothing but a momentary slip of the judicial lip, a higher court may see as a possible first step toward an unacceptable change in the settled law.

Of course, if the slipping lip was yours, and if the all-important last word of the opinion was ``reversed,'' even the most scholarly and tactful recitation of the trial judge's sins does not lessen the dyspepsia. Eating crow is never pleasant, even if the bird is one you have had to shoot on the wing.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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