The biggest challenge of appellate writing is figuring out how to convey without actually saying so that the trial judge was an uninformed barnacle. Especially when the standard of review is that the judge is always right. The appellate squawker is traditionally confined to saying, “the court erroneously held [insert outrageous ruling].” Or, if really out of control, “the court unreasonably held [insert even more outrageous ruling].
But we’ve recently discovered a treasure trove of vituperative euphemisms in the literature of heuristics, or “mental shortcuts,” or “kneejerk reactions that pass for thought.” With its obvious application to judicial decisionmaking, it provides a whole new vocabulary for hotfooting the affirmance machine.
For example, you can say: “The court, displaying a significant penchant for inter-personal dominance, a low need for cognition, and devoid of pre-decisional accountability, employed heuristics inappropriate to the process.”
Instead of: “The judge, a tinpot tyrant who hasn’t read a case since law school, ruled from the seat of her pants.”
You can say: “The court, seeking cognitive closure, relied on effort-reducing, time-saving heuristics, resulting in a suboptimal judgment.”
When you mean: “The judge decided the sentence before hearing a word of evidence.”
Instead of: “The trial judge was a prosecutor in a robe who took every opportunity to put his thumb on the scale.”
Say: “The court applied malleable and ambiguous standards.”
And you can safely say: “The court was constrained by cognitive overload.”
When what you mean is: “The judge slept through the whole trial.”
h/t to “Heuristics, Cognitive Biases, and accountability: Decision-Making in Dependency Court” by Matthew J. Fraidin.
It occurs to me that if you replace the word “judge” or the eponym “court” with “mountebank,” neither any of the appellate judges nor their baby-lawyer clerks will have a clue that you’ve called the berobed one below a judicial quack.
Haven’t tried it myself, of course.
Fraidin says, “This Article argues that decisions in dependency court are harmed by a shortage of pre-decisional accountability and an abundance of post-decisional opportunities to self-defensively bolster decisions previously made.” (Euphemism for “they make things up later”)
And a perfect description of appellate “review.”