Law Report: Quality of Judicial Opinions

Law Report: Quality of Judicial Opinions

Law Report: Quality of Judicial Opinions

The FINANCIAL -- More than twenty years have gone by since the collapse of Soviet Union and declaration of Georgia’s independence.

The decision of Georgian court that on its face runs on several pages to address the peculiar grievances of the parties, is in fact well-crafted assemble of a consecutive copy-pastes from the pre-cooked drafts, so vague and broad as to render the whole opinion immune to any sensible criticism.

Lengthy and dramatic twenty-plus years proved insufficient for establishing democratic, proper-functioning government institutions. First and foremost, this goes to the judiciary. The present Law Report, a series of articles on diverse legal issues will depict the principal problems our judicial system faces, as seen by two practicing attorneys of a prominent Georgian Law Firm.

Process of judicial decision-making in the country is done through rendering judicial opinions, responding to the matters brought in by the citizens. Without it, the separation of powers would not function properly. Practicing lawyers and their clients face the problems related to the quality of the decisions on a daily basis. Often times, the court’s decisions are vague, inconsistent and afar to the questions raised by the citizens. Thus, ensue significant systemic problems.

Problems, like the courts’ decisions, are heterogenous and multi-sided, causing disarray in every possible direction. The arguments presented by the parties must be met with an open mind by the Judges, who shall assess the facts, read the written petitions, go through the judicial process and then decide the dispute. The less coherent and methodical the decision is, the more difficult it is for the parties to get the answers to their questions. But, process of decision-making goes beyond the specifics of the case at hand and subsumes the judicial system as a whole, because the courts render decisions on behalf of the whole nation.

The functioning democracy cannot survive without the rule of law, which primarily requires the citizens to know what the law is. Otherwise, we would live to experience what Suetonius writes in his The Twelve Caesars about Roman emperor Caligula who “published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it.”

And because, as Chief Justice John Marshall writes in Marbury v. Madison, “It is emphatically the duty of the Judicial Department to say what the law is,” courts must be consistent and precise in their interpretation and application of law. Every time courts interpret the same text differently, they reinvent the wheel and distort the process.

And finally, bad decisions thwart the development of the law and judicial system themselves. Often times, courts are unable to deploy new approaches, arrive to the different theories without first having strong structural foundations for them. Courts’ inability to build on the prior experience forestalls the judicial process, obstructs the justice and does colossal damage to the society.

In Georgian courts, we often encounter the cases when judicial opinions are full of general, well-worn phrases that have no particular significance to the dispute at hand. The decision of Georgian court that on its face runs on several pages to address the peculiar grievances of the parties, is in fact well-crafted assemble of a consecutive copy-pastes from the pre-cooked drafts, so vague and broad as to render the whole opinion immune to any sensible criticism.

Georgian courts’ reluctance to focus on a particular problem and inclination to resort to more general forms of argumentation do enormous disservice to the judicial system. Sometimes, there even have been cases where practicing lawyers read the decisions rendered in two separate cases, by two separate judges that have identical texts and, perhaps, by operation of extreme carelessness in the job of copy-pasting, the identical case numbers too.

First question the client asks to the counsel is “what is going to happen?” Lawyers are ethically prohibited from giving guarantees, but in the world of consistent, well-reasoned decisions lawyers can explain the law to their clients as interpreted and applied by the court. That would enable the businesses to plan their legal activities more precisely and securely, saving substantial time and resources and boosting economic activities. Brief, succinct, to-the-point decisions are priceless to the clients, while lengthy, general opinions create more trouble than they solve.

What shall we do? Well, it is a job of a government to complete never-ending justice reform. But, before that happens we the practicing attorneys have developed skills and instincts that allow us to rectify the structural deficiencies of the system. We push the courts as hard as we can to get them address the client’s issue, hammering the points relentlessly to make it harder for the judge to skillfully avoid the question.

Knowing the system this hazy and obscure also includes lawyers having set of specific, amorphous and flexible skills and instincts that in every particular case will enable them to identify what the judges need to steer the wheels of justice in the direction most favorable to their client. It is no secret that a good lawyer knows the law, but a great lawyer knows the judge. In any case, in this world of judicial indeterminacy, the client will benefit tremendously from zealous and experienced lawyer who knows how the system works.