Judicial writing in America: How common Law is “made” and how understanding this process can help attorneys advocate for clients in American courts

Abstract

&amp,#8220,It is dangerous to let the public behind the scenes. They are easily dis-illusioned and then they are angry with you, for it was the illusion they loved.&amp,#8221,I. Introduction British novelist W. Somerset Maugham made the above statement regarding the writing process. Maugham explained that, as a writer, what interested him was not the illusion he created, but the way he created that illusion. Similarly, the way the common law is created is interesting to attorneys who represent clients in American courts. In fact, attorneys play a part in creating the law because judges can only decide cases that are actually filed and then can only evaluate arguments that are proffered by parties and counsel in those cases. In these next few pages, you will go &amp,#8220,behind the scenes&amp,#8221, of the American judiciary to see how common law&amp,#8212,the ever-growing body of judicial decisions that not only governs the actions of parties in decided cases, but also the actions of people in similar situations in the future&amp,#8212,is created. Although American courtrooms are generally open to the public, the actual manner of deciding cases and producing written decisions occurs behind the closed doors of judges&amp,#8217, chambers where only judges&amp,#8217, staff members are privy to the actual decision-making processes. Judges&amp,#8217, chambers are one of the few places where judges are out of the public eye and can thoughtfully contemplate these decisions. This article de-mystifies the judicial decision-making process by explaining how judges memorialize decisions into the written orders and opinions that comprise the American common law, and explains what kinds of authority judges must rely on when making their decisions. Understanding this decision-making process and how judges use legal authority can help attorneys in American courts effectively advocate for their clients. First, this article presents a primer on the structure of American courts and the doctrine of stare decisis. Second, this article explains the process many judges use for deciding cases, focusing specifically on how the judges produce their final written-products: the orders and opinions that make up the American common law. Although judges make the ultimate decisions, this article will demonstrate that many people may be involved in the process: the judge or judges deciding the issue, members of the judges&amp,#8217, staffs, and even the attorneys representing parties in court all have roles to play. Finally, the article gives attorneys suggestions for using the doctrine of stare decisis to their advantage should they ever represent clients in American courts.