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I've been reading a lot of judges' decisions recently, and I've noticed a type of comment that comes up frequently: comments that seem to only be provided in order to make it more difficult for an appellate court to overturn their decision.

Since I realized they were doing this, I notice it all the time. Comments that seem insignificant, but that if omitted would obviously allow an argument for appeal.

This seems like a very niche area, there may not even be a book about it, but I'm hoping there's at least some kind of article from a Law Reform Commission or the like, or some good examples if anyone knows of any.

  • I don’t think I’ve got a full answer for you, but this one might work as it looks at the issue through a quantitative analysis. books.google.com/… – A.fm. Jan 26 '18 at 5:23
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    Perhaps you could provide examples of the comments you notice "all the time." In my jurisdiction, it is quite common for judges to address all the arguments raised by the parties even though the outcome of one suffices to dispose of the case. This makes it more difficult for an appellate court to overturn the decision, but it does not serve only that purpose. You seem to be talking about something else. – sjy Jan 26 '18 at 7:54
  • This question is way too broad, there are literally thousands of books and journal articles about this as can be seen by simply typing “judicial decision making” into Google or, better still, Google scholar. If this were narrowed to answer if they are written this way specifically for “appeal-proofing” it would be fine. – Dale M Jan 26 '18 at 9:52
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    It is a common practice well known to practitioners and even discussed by law professors in class at time, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in a couple of versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal and alternative findings. Another is to give a soon to lose party everything he wants procedurally even when he isn't entitled to it so he can't appeal on procedural grounds. – ohwilleke Jan 26 '18 at 17:49
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    Since "reference requests" are generally off-topic, I just rephrased the title to make this more obviously on-topic. @ohwilleke – you should post that comment as an answer! – feetwet Feb 1 '18 at 15:58
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Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed.

There is probably a law review article that discusses the practice somewhere.

It also comes in several versions.

One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract.

Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial.

A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding.

A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it).

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