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View Full Version : Remand for Further Proceedings Consistent with this Opinion: Hollow Victory?


Fotheringay-Phipps
12-30-2009, 09:34 AM
There are obviously many cases where the appeals court reversal opinion will tie the hands of the district court and force a different opinion than the original one. But there are many cases where this is not so. Sometimes the court vacates on grounds that the original ruling "did not properly consider" or address such-and-such issue, or erred on highly technical or procedural grounds.

Human nature being what it is, I would expect that in the overwhelming majority of such cases - like 95% or more - if the case is simply sent back to the original judge he is going to find some way to sustain his ruling. He will correct any procedural deficiencies, and when he "considers" important factors that he didn't address in the first ruling, he will find that strangely enough they too just happen to support his initial ruling.

But is this expectation correct? Certainly the appeals court judges seem to take these remands seriously. And if the above is correct, then appeals on grounds of "failing to properly consider" can be futile exercises, so why would anyone bother?

I think one good idea might be to automatically assign any remanded cases to other judges. But that has the drawback of forcing a new person to familiarize himself with the case and is therefore inefficient, and in practice is not done.

Does anyone have any actual cites or knowledge of just how common it is for these types of remands to result in substantively changed verdicts.

Mr. Excellent
12-30-2009, 09:44 AM
In the US (and elsewhere, I assume), appellate courts just aren't going to remand for errors that aren't material - that is, that had no real effect on the verdict. In fact, that's a common argument at the appellate level. (For example, "Your honor, even if the trial court erred, it would have reached the same conclusion had it employed the analysis opposing counsel proposes.") An appellate court that remands a case to the trial court certainly will think there's a good chance of a different outcome. Does that always happen? No. But a remand is far from a "hollow victory".

Fotheringay-Phipps
12-30-2009, 10:00 AM
In the US (and elsewhere, I assume), appellate courts just aren't going to remand for errors that aren't material - that is, that had no real effect on the verdict.I was thinking of an example of an appellate court remanding because an issue had not been properly raised and/or argued. Obviously the lawyers that got reversed will promptly turn around and raise the issue again.

And similar such.

qazwart
12-30-2009, 10:10 AM
The most famous case where such a difference was made when it was sent back to the original jurisdiction was Gideon v. Wainwright. In that case Gideon originally had no legal representation and was found guilty. The Supreme Court sent the case back to the original court and stated that Gideon had a right to counsel. In the retrial Gideon had counsel and won his case.

Sometimes a case is sent back to the lower court, but it is dropped because the appellate court's ruling ruins the original case. For example, the appellate court rules that certain evidence is not permissible, and the original case depended upon that evidence.

Sometimes a case does go the other direction because errors in the original case did cause problems with the outcome. And, many times a judge who ruled on the original case knows they got spanked by the appellate court's decision and decides to take the hint.

There have been several cases where the Texas Court of Criminal Appeals (Texas' Supreme Court in criminal matters) made a ruling, the Supreme Court, objects to the ruling, and sends it back for reconsideration, the Texas Court of Criminal Appeals rules again on the case, it is sent back to the Supreme Court, and the Supreme Court will then vacate the Texas Court of Criminal Appeals ruling because they failed to follow the Supreme Court's guidelines.

Both the Texas Supreme Court (the Texas Supreme Court for civil matters and the Texas Court of Criminal Appeals (the Texas Supreme Court for criminal matters) are famous for having the rulings struck down by the U.S. Supreme Court and for not following the U.S. Supreme Court's guide lines. In Texas, all courts are not only elected for fixed terms (and have to run for reelection), but the judges also run on a party line. I can't imagine a worse way to pick judges.