The Appellate Courts offer a wonderful safety valve in
the judicial process. If litigants feel they have not been heard or think that the judge has made an unacceptable error in his
or her decision, they can always take the issue up the appellate ladder. Overall, trial court judges recognize that appeals
will happen and that reversals are to be expected. Most often when we learn we’ve been “tipped on appeal”, we read the reversal
with an unemotional, detached analytical acceptance of the decision. There are some occasions though when reversals do affect
us emotionally.
On these occasions, there seem to be degrees of reaction: mild irritation, exasperation, painful disappointment, or
embarrassment. In cases of unnecessary embarrassment, anger may follow.
As an example, let’s say a motion to recuse was denied
by the trial judge and this decision was upheld by the appeals court. If the last sentence of the appellate decision adds that
“hereafter, the case shall be heard by another judge”, that’s really a reversal in disguise and probably would leave the trial judge
feeling some modest irritation.
Or let’s say an appellate decision raises the burden of proof in contempt actions beyond what
is reasonably attainable in the real day-to-day world of contempt proceedings. That’s exasperating. The same would go for injecting
selective and inconsistent rules concerning hearsay evidence into motion session hearings.
The painful reversals almost always involve
decisions concerning children. The pain is deep when we know that the reversal – even though it may be the correct legal decision
- means that the litigation process will start afresh and put a child’s status in limbo for several more years. The disappointment
of having let the child down is real and visceral.
Embarrassing reversals are the worst. The appellate courts
can’t avoid some of these. They must set forth the facts and explain their decision. Any trial judge can make a mistake
or miss a key point and end up looking foolish. But every once in a while, an appellate court seems to go out of its way to
imply that the judge was a boob to have issued such a decision.
One of our judicial conferences closely followed an appeals
court decision that was both painful and embarrassing to one of our fellow judges. It was a custody matter. Most of us
thought that the appellate decision was wrong and that it needlessly and publicly zinged the trial judge. In an embrace of judicial
camaraderie, we commandeered the general agitation and decided to take a lighter look at Appeals.
At dinner that night, I took
the podium and announced that – in the spirit of the day - we were awarding prizes to the three judges “with the most reversals.” Keep in mind that reversals are not necessarily a bad thing. They may indicate a willingness to tackle tough cases and controversy. This was a spontaneous moment; I had no idea what any of the judges’ actual reversal records were. It turns out the third prize
winner actually had none at that time, as she reminded me when she stepped up to accept her prize of bar soap and travel size shampoo. Prize Number Two went to a judge with a commanding presence and booming voice, who snatched his prize and proclaimed with delight
that he was damn proud to have won. By this time, judges were laughing out loud, eagerly awaiting the announcement of
the big winner.
I had worked with the Grand Prize winner, David Kopelman, for many years, first as a probation officer then as an Assistant
Register. He earned his reputation every day as being a judge who never ducked the tough cases. And because he heard a
lot of high profile cases involving tough issues, he also had some high profile reversals. Of course, I knew all of this, and
knew as well that he would enjoy the notoriety of winning First Prize in our impromptu award ceremony.
I went through two or three
of his well-known cases, building up his bona fides before getting to the case that vaulted him to first place. This case had
come to court several years earlier when I was sitting with him as his clerk. One evening, just before closing time, an attorney
rushed in to court from a local hospital frantically waving a sheaf of papers. It was an emergency request to perform surgery
on a man with severe internal bleeding. This poor guy was slumped on a stretcher in the hospital hallway, semi-incoherent, and
expressing what his doctor called an “irrational” fear of surgery. The doctor’s affidavit indicated that the man would certainly
die if he was not operated on within hours to control the bleeding.
Judge Kopelman launched into emergency mode. He got an attorney
to race to the hospital to interview the patient and report back. The clock ticked. We knew the blood was flowing. Finally this attorney filed his report and, around 6:30 or 7 pm, Judge Kopelman entered an order that the surgery could go forward. Those of us who had stayed late along with Judge Kopelman left the court that night with a sense of satisfaction of a job well done.
The next morning, Judge Kopelman came in to work with a bit of a jaunty bounce. He described having enjoyed a late dinner with
his wife where he told her all about his role in saving the patient’s life. The sad duty fell to me to tell him that things
had not worked out so well. The man had died in surgery.
“No stinging rebuke from the appeals court here,” I told my fellow
judges. “There will be no published appellate ruling. Judge Kopelman has won first place tonight because his decision
to save the man’s life was reversed by God Himself!”
