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View Diary: It's not as sexy as waterboarding, but.... (93 comments)

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  •  Objection, assuming facts not in evidence (0+ / 0-)

    Yes.  And the process for that is called an appeal.  There is no need to civilly sue the judge.

    As a practical matter, the rule that a plaintiff must act to mitigate damages mandates that the aggrieved litigant exhaust his remedies by filing an appeal.  If an appellate court could be counted on to correct 100% of flagrant errors, the remedy I propose would be rendered theoretical.  In the final analysis, the litigant would have to travel a long and arduous path before he could seek damages in tort -- there would have to be a systemic failure.

    But what happens when the appellate process fails or worse yet, when the appellate process is the problem? This is where a remedy is necessary.  

    (By the way, are you planning to extend your civil suit rule to jurors as well?  If not, why not?)

    No, for several compelling reasons.  First, jurors don't possess any special level of competence in the law.  Second, the judge is expected to maintain control over the trial (and can negate the effects of a runaway jury through JNOV).  Third, the proposed standard for liability is willful misconduct, and it would be extremely rare for a jury to be in the position to commit it.  

    Not necessarily.  Only if the litigant decides to bring up Smith v. Jones.  It is not the judge's job to go search the lawbooks for cases that are favorable to a litigant. Judges are simply supposed to resolve the questions of law taht litigants actually dispute.  Failure to dispute a point results in losing it.

    My hypothetical here presumes reasonably competent advocacy; as in all tort law, contributory negligence rules apply, and an aggrieved litigant is required to mitigate damages in any event.  As everyone would be expected to know that if you don't raise an issue or preserve it for appeal, you lose it, the Court's failure to take it into account would not rise to the level of willful misconduct.

    When a litigant cites a case to the Court in response to a motion for summary judgment and explains to that court why it is dispositive, you're talking 'bout a whole different critter. [2bcont]

    •  If you are assuming that the appellate (0+ / 0-)

      process is broken (and you have yet to cite evidence of such systemic breakdown) what makes you think that suing the judges in tort, in front of the very same appellate court that already rejected your claim would give result in a victory?

      •  'Cuz they'll all be on the hook for malpractice (0+ / 0-)

        If there is anything that makes judges nervous, it is the prospect of people suing judges.  I'd also like to see a process whereby aggrieved citizens could act as private attorneys general (at least, to the point of presenting one's case to a grand jury), so that we aren't wholly dependent upon the caprice of a corrupt Department of Justice for the prosecution of crimes.

        I'm expecting that the mere specter of tort liability will go a long way toward cleaning up the mess.

        •  Ummm.. but who will adjudicate malpractice? (0+ / 0-)

          The SAME judges!  Why would they come out with a different decision on the second go-round than on the first?

          •  Facts are determined by a jury (0+ / 0-)

            and the question of whether a judge defied the binding pronouncement of a superior court is a question of fact.  

            Remember that in theory, all a judge should be doing is administering the trial.

            •  Until the judges (0+ / 0-)

              set the verdict aside on JNOV.  Your system makes no sense.

            •  Oh, and the question of whether (0+ / 0-)

              the judge refused to follow a binding precedent is not a question of fact, it is a question of law.  Because it involves the question of what the law was, and how it was applied, etc.  It is a purely legal and not a factual question.

              •  I would disagree here (0+ / 0-)

                in the sense that the judge's mental state is for the jury to decide, and most of the cases where this is going to matter are very clear-cut in any event.  By way of example, it is almost impossible for a judge to say that he doesn't know that a state court of general jurisdiction is required to hear a properly presented federal civil rights claim under Claflin v. Houseman.

                This is why I say there is very little fear that there will be a rash of frivolous lawsuits.  You have to honestly think you would win to go through the brain damage of filing a lawsuit of this nature.  People are rational, for the most part.

                •  The point is that under your scenario, (0+ / 0-)

                  post-appeal of the original case, the appellate court has already ruled AS A MATTER OF LAW that the original trial court was correct.  Consequently, there is nothing to submit to a jury in a subsequent case because it has already been held as a matter of law, that you did not present a proper claim for adjudication.

                  In any event, you would be bound by res judicata and collateral estoppel against relitigating issues you have already lost on.

                  •  Different parties, different cause of action (0+ / 0-)

                    Whether the matter is decided is beside the point; see Carey v. Piphus.  If the matter was decided using an unconstitutional procedure, the tort (I'm not really certain it should be called a tort) complained of is the deprivation of procedural due process (of course, other constitutional violations are also possible), and the operative question is whether that litigant's rights have been violated.  Let us assume for sake of argument that a judge decided a case from the bench by flipping Judge Younger's infamous silver dollar (I assume you've heard his classic talk on evidence), and the appellate courts upheld the decision.  Naturally, the decision is final as a matter of law, and Ellen's hairdresser gets to keep the pooch, but the parties' rights have still been violated.  Both parties could sue the judge (barring the immunity question for the moment) under Carey v. Piphus, but only one would have damages, and she would be the one suing the judge.

                    The only way the original case even comes up is in the computation of damages, which is what the Carey court held.

                    •  The point is you won't be able to show damages (0+ / 0-)

                      since the appellate court had already held that the decision (however reached) was a correct one.  So you won't be able to show that you suffered from the alleged violation.

                      •  Not necessarily (0+ / 0-)

                        If you can show that the process was unfair, and that you would have prevailed had the process been fair, you could recover on that theory (the injury was the unfairness of the process, and the damages are what you would have gotten in a fair one).  See, Carey v. Piphus.

                        •  Umm... no... because you would not be able (0+ / 0-)

                          to show the second part.  If you would have prevailed in a fair process, you would have won on an appeal, since the challenged decision would be wrong (however arrived at).  If, on the other hand, the challenged decision was right, it doesn't matter how it was arrived at, because you would have lost regardless.

                          •  That presupposes that the appeal is a (0+ / 0-)

                            functional process.  The simple fact is that sloth and indolence has so overwhelmed the system that we can no longer have any faith in that process.  Smith v. Mullarkey is a classic case in point, where the judges ruled in favor of their fellow guildsmen, and placed a heavy hand on the scales of justice.

                            It is the abject failure of the appellate courts which mandates this new remedy.

                          •  Once again, the remedy you seek (0+ / 0-)

                            will be in the same courts that you so deride.  In front of the same appellate judges who already ruled against you.  There is nothing that leads one to believe that the second go round would result in a verdict that is any more favorable than the first go round.

                            BTW, I sincerely hope that you are not Mr. Smith of the eponymous 10th Circuit case.

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