The part of your work with the most paper under it gets checked hardest. The part with almost no paper under it is close to final, and nobody sat down and planned that. A stack of orders is waiting this morning, settled between two sets of lawyers and typed up by somebody else, and your name goes on the bottom of work you never argued about. Nobody calls this a scandal. It is how the work has always been done, and it is the honest place to begin, because it is already the thing people are afraid of. You have a list today, and you will get through the list.
Research goes. So does the first pass through a file handed over at short notice, the chronology, the fair summary of what each side says, the check that a case still means what it meant when somebody first cited it. The procedural history at the front of a judgment goes, and nobody will mourn it. A first draft of an uncontested ruling on facts nobody disputes goes. And a great deal of what people imagine your discretion to be left years ago, into guidelines and ranges and categories that tell you the shape of the answer before you open your mouth. Judges have been saying that out loud for a long time. It was not a machine that did it.
The rest is short, and none of it sounds impressive written down.
Two people have told you different stories about the same afternoon. The documents don’t settle it. One of them is lying, or both are half remembering something that mattered to them at the time, and you have to write down which. That finding is the least reviewable thing you do all year. A court above you will take your law apart at leisure and leave that alone, because you heard the witness and they didn’t.
I don’t think that deference is a compliment to your eyesight. Anyone who has sat through a long trial knows how ordinary the judgment of a liar really is, and how often confident people get it wrong. It is an allocation. A dispute has to stop somewhere, somebody has to be the one who stopped it, and the system has taken the person who listened to the whole thing and made them final. Not because they see through people. Because the finding has to belong to someone.
The same arrangement is at its plainest when you pass a sentence. Most of the number is often settled before you speak. Where there’s a guideline it has done the arithmetic, the categories have done the rest, and any judge who pretends otherwise is enjoying themselves too much. Then it gets said out loud, by a person, to another person, with that person’s mother sitting behind them. None of that changes the number. It changes who the number came from, and everybody in the room can answer that question without being told.
Liability is the wrong word for what you’re carrying, and the difference matters. Nobody is going to sue you. In most places you have immunity for what you do on the bench, and where you have it, it exists so you can decide against powerful people without pricing the cost to yourself. What you carry isn’t legal exposure. It’s authorship. Your reasons are published under your name. When you get it wrong, a court above you says so in a document anybody can read, other judges will read, and the lawyer who lost in front of you will read twice.
A signature rots, and the objection has been sitting in the first paragraph since you started reading. A person who approves a document they did not reason their way to has produced an audit line and not a decision, and everyone has watched that happen somewhere. You already sign agreed orders in a pile, so you know the feeling from the inside. Put a system in front of a judge that drafts a full ruling, with findings and reasons that read better than his own, on a list that is too long, where the draft is nearly always fine. The honest description of that morning’s work is that somebody checked it looked right.
I can’t point to a rule that stops this, because there isn’t one. The only thing holding is that reversal is personal and public. A machine’s draft, once you adopt it, is your draft. The error gets your name on it and the correction gets your name on it too, and that is an uncomfortable enough arrangement to keep most people reading properly.
I’d rather admit where that protection is thin than pretend it isn’t. It works while the number of decisions is small enough for each one to be attached to a person who can be embarrassed by it. Push the volume up and it wears through. At the small end of civil work, where the sums are modest and nobody is going to appeal anything, I’d expect the person to go first, and nothing in this post rescues that. It ends up as a service with a complaints procedure, which is not the same animal and everybody will pretend it is.
That leaves the part of the job most judges enjoy least. Ask one what the difficult bit is and many will start on the law. The law is difficult the way a puzzle is difficult, and it arrives with cover attached, because you can point upward and say the answer was never yours to choose. Deciding who is lying comes with nothing to point at. No authority, no clause, no table. As the rest of the work moves off your desk, that is what your day thickens with, and it is the part where you are most on your own and least able to show your working. That last bit is a guess. It comes off what judges write about the job rather than off doing it, and a week of lists, case management, remedies and sentencing may look nothing like the picture I’ve drawn.
There’s a version of the future where that gets described as efficiency. The reading was done for you, the draft arrived clean, and all that’s left of the office is the half nobody can help you with. Nobody planning this has said out loud that they are concentrating a job down to its most exposed component. It would be an honest thing to say.
When somebody describes a system that would decide these cases, don’t argue about whether it would get them right. Ask them something smaller. Who gets told they were wrong, where is that person standing when they’re told, and what happens to them afterward. If there’s no answer to that, they haven’t described a court.