Understanding Vertical Stare Decisis as an Appellate Practitioner:

There is a fundamental misunderstanding that pervades the bench and bar on the state and federal level about a judge's discretion when ruling on pending matters.  In theory, judges are bound by strict rules and precedent which serve to define and point out their duty in every particular case that comes before them.  But practically speaking, members of the bench and bar often remark that judges can do whatever they want.  The truth is that state and federal judges have a constitutional obligation to adhere to the concept of vertical stare decisis.  The U.S. Supreme Court explains that concept in the following manner. 

“[V]ertical stare decisis is absolute, as it must be in a hierarchical system with ‘one supreme Court.’” See Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n. 84 (2020) (citing U.S. Const. Art. III, § 1). “In other words, the state courts and the other federal courts have a constitutional obligation to follow a precedent of this Court unless and until it is overruled by this Court.” See Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n. 84 (2020) (citing Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)). This includes the result and the reasoning independently as this Court explained in Ramos. See Ramos v. Louisiana, 140 S. Ct. 1390, 1416 n. 85 (2020).  “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”  Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). 

“In the words of THE CHIEF JUSTICE, stare decisis’ ‘greatest purpose is to serve a constitutional ideal – the rule of law.”  See Ramos v. Louisiana, 140 S. Ct. 1390, 1411 (2020) (citing Citizens United v. Federal Election Comm’n, 558 U.S. 310, 378, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010)). “Writing in Federalist 78, Alexander Hamilton emphasized the importance of stare decisis: To ‘avoid an arbitrary discretion in the courts, it is indispensable’ that federal judges ‘should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” See Ramos v. Louisiana, 140 S. Ct. 1390, 1411 (2020) (citing The Federalist No. 78, p. 529 (J. Cooke ed. 1961)). 

Note, a U.S. Supreme Court opinion's result and reasoning, independently, are binding on the inferior courts.  So next time you are confronted with a legal issue of significance, check to see if the U.S. Supreme Court has weighed in on the issue.  You may find that the judge has less discretion when ruling on your issue than you think.  But remember, your job as a practitioner is merely to provide judges with the tools (i.e. rules, statutes, and case law) they need to fulfill their constitutional obligations.  Should you disagree with a judge's ruling on a particular matter, don't needlessly argue with the judge: just preserve the record and avail yourself of the appropriate appellate remedies (e.g. motions for rehearing, direct appeals, motions for rehearing and rehearing en banc, petitions for extraordinary writs of certiorari, mandamus, prohibition, etc.).    

    - Richard Keith Alan II, Esq.

"Study to shew thyself approved unto God, a workman that needeth not to be ashamed, rightly dividing the word of truth."  2 Timothy 2:15 (KJV).       

 

Word to the Wise:

Fortitude is a very important spiritual attribute that one must possess when pursuing justice on behalf of the oppressed.  Fortitude is the strength of mind that enables one to encounter danger or bear pain or adversity with courage. Yet, fortitude without patience and perseverance is futile.

Perseverance is characterized by one's continued effort to do or achieve something despite difficulties, failure, or opposition, even when it takes a long time.  One cannot expect a quick victory when battling against injustice, especially where the perpetrators are private, state, and or federal government actors.  But in the final analysis, patience is key.  Patience is characterized by one's ability to accept delay, suffering, or annoyance without complaining or becoming angry.  Indeed, to be the consummate professional, one must patiently pursue justice.

The uninitiated and neophytes naively believe that successful campaigns are swift.  Adepts understand that the victor is the one that endures until the end.  Before you embark on your next pursuit, be sure to pack an extra dose of patience, perseverance, and fortitude.  And remember, though you may be often tried, you will never be denied, if you're willing to be tried again.  "Therefore, my beloved brethren, be ye steadfast, unmovable, always abounding in the work of the Lord, forasmuch as ye know that your labour is not in vain in the Lord."  I Corinthians 15:58 (KJV). 

 

Word to the Wise:

In legal parlance, it is customary for attorneys to refer to themselves as "criminal defense attorneys" when they focus their practice on representing clients who have been arrested and or charged with a crime.  Even prospective clients unwittingly use the phrase "criminal defense attorney" when searching for an attorney to represent them after they've been arrested.  Unfortunately, this phraseology is self-defeating; and, it subconsciously signals to others, including the prosecutor and the judge, that the arrestee is actually a criminal, guilty from the outset.  

The subconscious misbelief in the arrestee's guilt [on the part of the defense attorney, the prosecutor, and or the judge] ultimately works to undermine the constitutional protections purportedly afforded to the arrestee and it leads to injustice in the following forms: 1) denial of bail or the setting of excessive bail pretrial; 2) denial of access to exculpatory discovery or the withholding of exculpatory and or impeaching discovery by the prosecution; 3) denial of defense counsel's legitimate request(s) for a continuance or more time to prepare for trial; 4) forced or coerced erroneous guilty pleas; and, 5) hurried or unnecessarily rushed judicial proceedings (i.e. jury selection, jury trial, and jury deliberations).       

When a person has been arrested and or charged with a crime, they are merely the accused, not a criminal; and, the attorney representing them is defending the accused, not defending a criminal.  As a matter of law, the person under arrest is innocent until proven guilty; and, defense attorneys should not say or do anything to compromise that favorable presumption in or around the courthouse.  

Words are powerful so use them carefully and artfully throughout the representation of your clients and remember, injustice anywhere is a threat to justice everywhere.   

           

Word to the Wise:

Success in court depends on the "politics" of the case in controversy, not just the facts and law supporting the claims or defenses under consideration.  Generally, if the politics dictate that your clients' arguments should prevail, then they will and vice versa.  This is antithetical to popular notions of the rule of law but it is consistent with the understanding that courts are members of the judicial branch of "government".  

The judicial branch of government is just as susceptible to the influence of "politics" as the legislative and executive branches of government.  According to collinsdictionary.com, the plural noun politics "can be used to talk about the ways that power is shared in an organization and the ways it is affected by personal relationships between people who work together."  

Keep this working definition of politics in your minds eye as you evaluate whether to take on your clients' causes.  Moreover, as you litigate their causes, be aware of the powers and personal relationships that may be adversely affected thereby.  Understanding the political power equation is the key to assessing the time and money it will take to litigate your clients' issues and to managing your clients' expectations throughout the process.

If you're interested in learning more about the political power equation and how to litigate your clients' issues when they are on the wrong side of that equation, please email your questions or concerns to attyrkaii@timefortrial.com.  

   

Word to the Wise:

The chief cornerstone of justice is truth; and, where there is no truth, there can be no justice.  Great attorneys pursue justice, not blind advocacy. 

To be a great attorney, you must find the truth and build your clients' legal claim(s) or defense(s) upon it.  Remember, you must be intellectually genuine as to the facts and the law.  Your failure to do so could be fatal to your cause.            

Word to the Wise:

Words are powerful.  Choose them carefully.  Be clear and concise.  Say what you mean and mean what you say.

Word to the Wise:

Morality and or virtue cannot be taught or learned, it must be the very essence of a human being.