Federal Judges, Frank Easterbrook, In-House Counsel, Litigators

Inside Straight: Institutionalizing Mediocrity

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Here’s my thesis: We create rules to hedge against ineptitude, and we thus institutionalize mediocrity.

Here are the examples. First, someone — the Administrative Office of the Courts? God? — creates rules to hedge against incomprehensible judicial opinions, and we thus discourage judges from writing exceptional opinions.

When new federal appellate judges attend what is affectionately called “baby judges’ school,” the judges are told how to write opinions. An opinion should have five parts, the judges are told: An introduction (which does not have to be preceded by a separate heading); a statement of facts; the standard of review; the legal discussion; and a conclusion.

Do we impose these rules because every judicial idea is best expressed in this format? Of course not. These rules impose a basic organizational structure on decisions, so that even the worst appellate decisions will be marginally comprehensible. The rules hedge against ineptitude.

Most judges follow the rules, and society generally benefits; we understand most of what’s written. I suspect that many judges who would be capable of writing better opinions if they were not bound by the rules nonetheless choose to constrain themselves, opting to do as instructed. Society may suffer in those situations, because the opinions are not as well-crafted as they might otherwise be.

A few judges ignore the rules. Whatever your politics, for example, you probably agree that Judge Frank Easterbrook often writes great opinions; he regularly ignores the mandatory structure. (This isn’t a high crime or misdemeanor, so he’s safe.) We don’t complain when Judge Easterbrook strikes out on his own, because readers understand what he’s saying and often delight in how he expresses himself.

On the other hand, if Judge Nobody were to strike out on his own, the law might become a muddle. We try to control that judge by imposing a structure. Bureaucratic rules discourage greatness, but they hedge against ineptitude.

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Here’s a second example:

Court rules hedge against unintelligible briefs, and thus prevent litigants from filing exceptional briefs. Different court rules imprison briefs within different structures. For federal appeals, it’s Contents/Authorities/Jurisdictional Statement/Issues Presented/Case/Facts/Summary of Argument/Argument/Conclusion. Is every brief most persuasive when so cabined? Of course not. Shakespeare, unconstrained, could do better. But if we compel litigants to include these elements, we increase the odds that even the worst brief will be intelligible.

As you survey institutions, you see the same thing. In a corporate law department, for example, you might see rules demanding that requests for settlement authority follow a rigid structure — perhaps an introductory paragraph that contains three sentences, which must list the case name, existing settlement reserve, and precise amount of additional authority requested; a short description of the facts; and so on. You look at the rules, and you can almost imagine the in-house lawyer, years ago, reading a free-form request for settlement authority, scratching his head, and muttering: “What in God’s name is this? Who sued whom for what? How much authority does this clown want? I have to impose some rules so that I can figure out at a glance what I’m being asked.”

Presto! Instant bureaucratization.

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It’s the same thing with case reports. What you need is: “Keep me reasonably abreast of the cases.” That shouldn’t necessarily require a set of rules, because the intent should be obvious: In big cases, tell me about almost everything. In little cases, tell me about the important stuff. Use your judgment, and tell me the things that a curious person would want to know about the cases.

But what you get varies from person to person, depending on individual judgment and ability. After being blindsided a few times, you bureaucratize things: “Let’s create weekly written status updates, in which you provide summaries of all new events in all cases.” Or: “Let’s schedule monthly calls to discuss all of your pending cases.” No one affirmatively wants to impose the rules, and everyone gripes about the administrative hassle, but the rule-maker feels as though she has no choice — she’s hedging against ineptitude.

I’m not sure there’s a solution to this; maybe it’s a good idea to impose rules that hedge against incompetence. And maybe the most gifted people can thrive despite the limits. Is it possible to write a great brief, despite the constraints of local rules? Some guys do okay within the bounds of 14 lines of iambic pentameter. After all:

“Nuns fret not at their convent’s narrow room;
And hermits are contented with their cells;
And students with their pensive citadels;
Maids at the wheel, the weaver at his loom.”

For the rest of us, not so much.

Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at inhouse@abovethelaw.com.

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