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Divorce Mediation Blog

What is the point of Rule 1:28, really?

Wednesday, June 24, 2015

As we noted on our last entry, the recent Rule 1:28 decision Martin v. Martin is sparse on facts, a chronic condition of the Massachusetts Appeals Court’s “unreported” decisions, leaving us often thinking that “we must be missing something”. Martin was no exception. Today, we ask, as we have obliquely in the past, what is the point of Rule 1:28 anyway?

The Appeals Court hears and decides lots of cases, many more than the Supreme Judicial Court. Whether as a matter of caseload management, or otherwise, some cases are deemed worthy of “reported” status. These are cases that are heard by a 3-judge panel but vetted by the entire Appeals Court bench of 22-justices (plus one on “recall”), with opinion authorship identified. They are deemed “precedent” for lawyers to cite and argue, and for trial judges to observe and apply, trumped only by the Supreme Judicial Court (SJC). We believe that reported cases are selected because they offer what the court deems an opportunity to comment on a significant issue of law.

Then, there are the more numerous “summary decisions” that are always styled: “Memorandum and Order Pursuant to Rule 1:28”. According to the legend on every 1:28 decision, “summary decisions… are primarily directed to the parties”; they are “not circulated to the entire court”; and “…may not fully address the facts of the case or the panel’s decisional rationale.” Finally, the legend concludes that unreported cases: “…may be cited by lawyers for “…persuasive value but…not as binding precedent.”

First, if the decision is directly primarily to the parties, the people most directly interested in the outcome, why do they not merit the panel’s full decisional rationale?

Second, what exactly does it mean that an opinion may be persuasive but not precedent? Judges’ legal conclusions are meant to provide insight into their analysis, both so the parties can understand, but more formally, so that an appellate court can examine the trial court’s reasoning on appeal. A judge is obliged to cite to precedent upon which she relies, but not to what she finds merely persuasive. Doesn’t that obscure the judge’s full thinking; and, thus, in turn, undermine the reviewing process?

Third, rather than focus lawyers only on fully vetted decisions that the Appeals Court endorses as a whole, lawyers feel compelled to scurry for the latest 1:28 decision that may present sketchy facts that they can graft onto their arguments as a factual mesh with their own cases, but that by definition, have no precedent value. The result: attenuated arguments, bloated memoranda and a welter of inconsistent non-precedents that are deemed to be persuasive of something. Rather than cherry-pick comments (“dicta”) from cases that lack substantial factual context, shouldn’t legal argument be grounded in fully explained precedent, or a clear challenge to same?

We have a court system where the public has a general right to know about decisions. But, if the unreported cases are truly for the benefit of the litigants, why is it not sufficient for the Appeals Court to simply report “affirmed” or “reversed” in the public record. Or, why not report all reversals as “full” opinions that the public may easily access, and affirmances only where a significant evolution of law is taught. In most family law cases, an affirmance is simply defers to the broad exercise of discretion due to the trial court, which may have little or no true analytical value to anyone outside the case at hand; while every reversal is arguably a teaching moment.

Family law is complex enough on its own merits. There is no need to muddy the waters with non- precedent, when there is plenty of the real thing to go around.



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