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Inside the mind of the judge – Part VI: How Appellate Judges Decide Cases
by Judge David M. Gersten

I. Introduction
In the last edition of the Inside the Mind of the Judge series, I covered how trial judges make decisions.  I discussed the diversity of judges and the different approaches that trial judges may use to make their decisions.  Ultimately, I concluded that trial judges strive to make a right, just, and proper decision.

This article will explore the process by which appellate judges make decisions.  In doing so, I will detail the two types of appellate judges and their philosophies.  I will also further dissect these types of judges into two categories: (1) the “one-vote” judge, and (2) the “player” judge.  I believe that most appellate judges will not enjoy this article because it deviates from a traditional “party line” and explores the reality of appellate decisions.

II. How Appellate Judges Make Decisions
Just like trial judges, appellate judges also strive to make a right, just, and proper decision.  Yet, an appellate judge is very different from a trial judge.  Although appellate judges may have wisdom and knowledge from their experiences as a trial judge and/or as an attorney, their job is completely different from that of a trial judge.  Their job is different because the appellate process is a political process.  Political does not mean Democrat or Republican.  It means, rather, that the appellate decision-making process, unlike a trial judge’s, involves more than one person.

Although appellate judges are higher up on the judicial food chain, this does not mean that appellate judges are smarter than trial judges.  Appellate judging, much like trial judging, takes a large amount of practical sense.  Applying practical sense means that the appellate judge must be able to visualize how the opinion will affect or “play out” in the real world of law.

Next, appellate judges have certain personality traits that generally separate them from trial judges.  As a practical observation, appellate judges lean towards introversion.  Therefore, appellate judges are often less gregarious than trial judges.  Also, appellate judges are less open with their thoughts and feelings when conversing with other trial judges and non-judges.  But introversion is a suitable personality trait for judges who spend most of their day reading and writing.

Appellate judges, like trial judges, have a personal sense of justice.  Often, that personal sense of justice appears in their opinions.  Therefore, if one takes the time to read a judge’s opinion, it is possible to glean that judge’s personal sense of justice.

Admittedly, a judge’s sense of justice is embedded in his or her personal philosophy.  His or her personal philosophy may range from strict constructionist to ultra liberal.  However, sometimes appellate judges use their philosophies to manipulate the law.  Manipulation of law is not as bad as it sounds.

Appellate judges manipulate the law because they are compelled by their personal sense of justice to assure the outcome of a case.  While the trial judge follows the rules of evidence and procedure in an attempt to mold the facts with the law, the appellate judge is free to pick and choose both law and facts in writing an opinion.

This is not to imply that opinions are written in an incoherent or false fashion; they are not.  Rather, they take the form of logic and reason peppered with supporting facts and law.  The final opinion will generally appear to reach an obvious conclusion.  The conclusion then effectuates the writer’s justice.

III. Appellate Judges’ Review Philosophy
Ninety-nine percent of all judges, appellate or not, will state, “I follow the law.”  The problem is that justice and law do not always intersect.  In other words, all laws are not just.

Using the term “philosophy” again, appellate judges view their review function in two competing fashions: (1) “if I were the trial judge, I would have decided the case differently.  However, I will defer to the trial judge;” or (2) “if I were the trial judge, I would have decided the case differently.  Therefore, I will decide the case the way I thought it should have been decided.”

An appellate judge has to determine which general review philosophy he or she will adopt.  The sooner an appellate judge decides the better.  Otherwise, one gets confused in determining his or her appellate function.  In other words, by deciding which philosophy to employ, an appellate judge decides if he or she wants to follow justice or follow the law. 

The decision of whether to do justice or follow the law may be daunting for some appellate judges.  Because justice and the law do not always intersect, the lofty concept of justice may seem attainable, but only if the law is molded to accomplish a judge’s personal view of justice.

The interesting “X” factor for appellate judges is that appellate judges have a lot of discretion in deciding which way a case can go.  They can follow the law and compromise their sense of justice, or instead, they can follow their sense of justice and create law or exceptions to the law.

In my opinion, most appellate judges try to only follow the law.  I assure you, however, that it is impossible to make every case fit within the law.  It is even harder to find an appellate judge who states that he or she follows the law 100 percent of the time.  As a result, appellate law remains far from certain or predictable.

IV. “One-vote” judge versus “player” judge
Because most appellate courts sit in three judge panels, there is one factor that somewhat equalizes appellate law and appellate judges—the majority vote.  Appellate judges have two options: (1) to cast one vote or (2) to cast one vote and influence another judge to join in a majority decision.  These options generate the one-vote judge versus the player judge phenomenon in each appellate court.

When it comes to judicial decision-making, a one-vote judge understands that he or she only has one vote.  A one-vote judge carefully decides how to use his or her vote.  Once he or she casts a vote, however, he or she then waits on the other judges to vote and determine the majority. 

On the other hand, a player judge tries to bend the will of at least one judge to form a majority.  A player judge understands that he or she needs a majority of votes to mold the law to the player judge’s concept of justice. 

The underlying flaw in the player judge’s logic is failure to recognize that his or her sense of justice may be inverted and ego-centric.  An ego-centric sense of justice may cause an appellate judge to rationalize decisions.  An ego-centric sense of justice may cause appellate judges to overvalue their decisions, claiming their law should be the only law.  As a result, a balanced panel viewpoint is lost, and true consensus justice does not always prevail. 

If you are not clear what I mean by player judge or ego-centric sense of justice, I suggest reading some of the United States Supreme Court majority opinions.  Some justices follow precedent.  Some justices distinguish precedent.  You, gentle reader, can decide which is the better philosophy to follow.

V. Conclusion
Appellate judges, at some point in their careers, may define themselves as one-vote judges or player judges.  However, most appellate judges are one-vote judges.  Thus, you can be certain that there are fewer players manipulating the direction of law. Regardless of an appellate judge’s affiliation as a one-vote or player judge, fealty to the law guides appellate judges.

Please email me at gerstend@flcourts.org with any suggestions or solutions that we can share with our membership.  Thanks for reading. FRATRES CONJURATI.

Judge David M. Gersten has served as an appellate court judge since 1989, having previously served at both tiers of the trial courts since 1980. Judge Gersten served as the Associate Dean for the Florida College of Advanced Judicial Studies and is currently a faculty member lecturing on: Alimony, Domestic Violence, UCCJEA, Enforcement of Non-U.S. Judgments, Collegiality, Bio-Ethics, Constitutional Law, Criminal Issues, and Civil Issues. He also serves as faculty for the National Judicial College, Reno, Nevada, and is an Adjunct Professor at St. Thomas University School of Law. Judge Gersten has published articles on a variety of legal topics. His publications include: Matthew Bender: "Florida Civil Practice Guide" (1994-present); Reviewer, Florida Forms of Jury Instruction (1990 to present); The Florida Bar Journal: "Evidentiary Trends in Domestic Violence" (1998); "The Doctrine of Lis Pendens: The Need For A Balance" (1995); Special Report: Legal Ethics in Florida, "A Consensus of Morality In Ethics - Toward A Comprehensive Code of Professional Ethics" (1991); "Manifest Necessity - A Trial Judge's Responsibility to Assure Justice" (1989).