I clerked for Judge Jeffrey R. Howard, who is now a senior judge on the U.S. Court of Appeals for the First Circuit. He was (and is) a great person and a true gentleman.
When I started my clerkship, he shared his philosophy when it came to drafting opinions. He never wanted to see drafts that were overly dismissive or critical of the parties making the arguments or the trial judge who made the rulings below. He preferred phrases like, "We disagree" over ones like "The trial court erred" or Party A or B "is wrong." His thinking was that the practice of law is hard enough and taking a shot at a lawyer or another judge, particularly with the benefit of hindsight, isn't productive or gracious.
Just recently, I read a concurrence from one of our own judges, Judge Singhal, that felt like something Judge Howard would have written.
The case was Georgia Atlas, Inc., et al v. Executive Director of the Georgia Access to Medical Cannabis Commission, et al. Judge Singhal was sitting by designation on a panel that vacated the trial judge's dismissal of a complaint for lack of standing. Judge Singhal wrote separately and said the following:
"On the arguments presented below, the distinction between being heard and obtaining relief was less developed. Our review of jurisdiction, however, is independent, and the arguments before us constitute a fuller presentation of the issues. While I cannot fault the district court on the ruling it reached on what it was given, I must conclude the district court was mistaken. Accordingly, I concur."
I think sometimes judges can lose sight of the stinging effect a negatively worded order or opinion can have on a lawyer (who may have to share that order with an important client) or even a judge (yes, even judges with life tenure).
Judge Singhal also included the following joke in his concurrence, which I'm sure district judges enjoy telling at the Eleventh Circuit Judicial Conference:
A Supreme Court justice, a circuit judge and a district judge go duck hunting. A duck flies overhead and the Supreme Court justice, before she picks up her shotgun, ponders the policy implications of shooting the duck. How will the environment be affected if she shoots the duck? How will the duck-hunting business be affected if she doesn’t shoot the duck? By the time she finishes, the duck has flown away.
Another duck flies overhead, and the circuit judge goes through a five-part test before pulling the trigger: He lifts the shotgun to his shoulder, he sights the duck, he measures the velocity of the duck’s flight, he aims, and he shoots. And he misses.
Finally, another duck flies by, and the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and tells the other two judges to explain what he did over dinner.
You can read the opinion here.
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