APPELLATE COURTS AND LAWYERS - INFORMATION GATHERING IN THE ADVERSARY SYSTEM

• NCJ Number: 53763
• Author(s): T B MARVELL
• Date Published: 1979
• Length: 401 pages
• Corporate Author: Greenwood Publishing Group
• Sale Source: Greenwood Publishing Group
• Language: English
• Country: United States of America
• Note: CONTRIBUTIONS IN LEGAL STUDIES, N 4

Annotation

THE APPELLATE COURT INFORMATION-GATHERING PROCESS IS EXAMINED, WITH ATTENTION TO THE APPEAL PROCESS AND THE TYPES OF INFORMATION GENERATED BY AN APPEAL'S PROGRESS THROUGH THE COURTS.

Abstract

WRITTEN WITH AN EYE TO THE ORDINARY CASE IN WHICH AN APPELLATE COURT MAKES A MODERATE ADJUSTMENT TO EXISTING LAW, THE MATERIAL IS ORGANIZED UNDER FOUR BROAD TOPICS. THE FIRST IS A DESCRIPTION OF HOW ATTORNEYS AND OTHERS PRESENT INFORMATION TO JUDGES. THIS IS MAINLY A DISCUSSION OF APPELLATE PROCEDURE AND OF THE LAW CLERK'S DUTIES, BOTH OF WHICH ARE LARGELY INFORMATION-PROCESSING ACTIVITIES. THE SECOND IS AN ANALYSIS OF THE INFORMATION SOURCES, CONTRASTING THE ADVERSARY SYSTEM WITH OTHER SOURCES. HOW MUCH OF EACH TYPE OF INFORMATION COMES FROM COUNSEL, AMICUS BRIEFS, OUTSIDE EXPERTS, CLERKS AND STAFF ATTORNEYS, AND THE JUDGES' BACKGROUND KNOWLEDGE ARE EXPLORED, ALONG WITH QUESTIONS REGARDING THE EXTENT TO WHICH COUNSEL SMOTHER THEIR PRESENTATIONS WITH TIME-WASTING, EXTRANEOUS MATERIALS AND THE SUCCESS OF JUDGES' ATTEMPTS TO SUSPEND THE ADVERSARY SYSTEM BY REQUIRING COUNSEL TO PRESENT FACTS AND LEGAL AUTHORITY AGAINST THEIR OWN POSITIONS. THE THIRD LOOKS INTO WHY JUDGES RELY ON THE ADVERSARY SYSTEM FOR SOME TYPES OF INFORMATION MORE THAN OTHER TYPES. THE INTERLOCKING FACTORS BEHIND THESE DIFFERENCES ARE EXPLAINED, THE MOST IMPORTANT OF WHICH HAVE TO DO WITH HOW JUDGES USE THE VARIOUS TYPES OF INFORMATION AND WITH THE PROBLEMS OF FINDING AND EVALUATING THE INFORMATION. THE FOURTH TOPIC IS HOW THE PROBLEMS OF FINDING AND EVALUATING INFORMATION AFFECT THE KINDS OF DECISIONS MADE. BECAUSE THESE TOPICS CANNOT BE ADEQUATELY STUDIED WITHOUT SUBSTANTIAL BACKGROUND KNOWLEDGE OF THE GENERAL SUBJECT, SELECTED BACKGROUND TOPICS ARE DISCUSSED IN ADDITION TO THE FOUR MAIN TOPICS. THESE INCLUDE JUDICIAL SECRECY, CASELOAD PROBLEMS, THE DISTINCTION BETWEEN THE COURTS' LAW-MAKING AND DISPUTE-DECIDING FUNCTIONS, THE STAGES AT WHICH JUDGES MAKE UP THEIR MINDS, AND THE EXTENT TO WHICH WRITTEN OPINIONS REFLECT THE JUDGES' ACTUAL, CONSCIOUS REASONS FOR THEIR DECISIONS. REFERENCES ARE FOOTNOTED. (KBL)