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A Phrase Judges Should Probably Avoid:
"In my humble opinion." Why? First, a lot of judges are not humble. Second, if their opinions really are humble, they probably don't need to point out how humble they are. True, the phrase "in my humble opinion" can be used as a signal of courtesy rather than humility. But I don't think that meaning comes across well in judicial opinions. Opinions usually are written in a confident style; the judge tries to make his decision seem indisputably correct. Given that, the use of "in my humble opinion" suggests a false humility rather than an earnest respectfulness. (Just a thought inspired by reading this concurring opinion , where a district judge sitting by designation in the 11th Circuit writes a concurrence arguing that "in my humble opinion," the Supreme Court's 8-1 directly on point decision from a few months ago was wrongly decided. It doesn't help that the district judge's interpretation of that precedent was pretty far off the mark).
Anderson (mail) (www):
Agreed that IMHO sounds sarcastic in judicial ops.

What do readers think of referring to the trial judge as "the learned judge"? I've seen this done sincerely, to all appearances, but it does sometimes appear ironic.

In general, I think these expressions should be avoided. The trial court either erred, or did not err. The majority is correct, or it is mistaken. One actually may be less likely to tread on anyone's toes by being direct and to the point.
8.22.2007 1:25pm
moon (mail) (www):
On a related note, a well-regarded appellate judge I clerked for once said, "Whenever I hear the phrase 'with all due respect,' I know I'm about to get anything but."
8.22.2007 1:29pm
anonVCfan:
Majority opinions are usually written in a confident style, and claiming that one's opinion is "humble" when it has legal consequences is silly.

In concurring and dissenting opinions, however, it doesn't strike me as inappropriate across the board. Some concurring opinions are just expounding on some issue that's relevant but that doesn't need to be decided to dispose of the case, (E.g. McConnell's law review-type concurrence in Pruitt on reasonableness review after Booker). Others, while not disagreeing outright with the majority, suggest disposing of a case on narrower grounds and might "humbly" suggest that the broad rationale the majority adopts isn't necessary.

I think it's a phrase that can be appropriate in some judicial opinions, but it's probably abused fairly often. The suggestion that "we will live to regret" Scott v. Harris isn't a very humble one.
8.22.2007 1:29pm
anonVCfan:
nevermind my reference to McConnell's opinion. I'm not sure what I was trying to say with that, and it's certainly a better opinion for not having used the phrase "in my humble opinion."
8.22.2007 1:31pm
OrinKerr:
AnonVCfan,

Fortunatey, it's used only rarely: in the Westlaw CTA database, I came across only about a dozen hits (other than quotes from the record, testimony, etc.)
8.22.2007 1:39pm
KeithK (mail):
Personally I prefer In My Not So Humble Opinion. It's usually more accurate.
8.22.2007 1:41pm
Flash Gordon (mail):
Since so many judges do their best to toe the Democratic party line I think they should sign all their opinions with "Your Most Humble and Obedient Servant," and send an originally signed copy to Harry Reid and Nancy Pelosi.
8.22.2007 1:41pm
Adeez (mail):
Humility and being "humble" I believe are very misunderstood, confused terms. Kinda like "smart" and "God," as but two completely unrelated examples.

That being said, wanna see a humble judge in action: peep Jack B. Weinstein of EDNY. Or as I know him, The Man.
8.22.2007 1:44pm
Hattio (mail):
Have to disagree with people here. I think his use of the phrase IMHO in this case basically translates to "I know nobody gives a rat's ass what I think because the Supreme Court already ruled, but they're wrong." Unless there's something bad about other jurists disagreeing with the Supreme Court, I don't see anything wrong with this. I say that without having read Harris, because whether the judge is right or wrong about Harris really has nothing to do the correct or incorrect use of the phrase.
8.22.2007 1:53pm
anonVCfan:
Fortunately, there's only one hit for "in our humble opinion" in the CTA database.
8.22.2007 1:56pm
Crunchy Frog:

What do readers think of referring to the trial judge as "the learned judge"? I've seen this done sincerely, to all appearances, but it does sometimes appear ironic.

That's right up there with "the Right Honourable Gentleman" as used to address someone on the other side of the aisle in the House of Commons. It's best translated as "that Scum-Sucking Bastard".
8.22.2007 2:05pm
Dave N (mail):
Having read Judge Presnell's concurrence, I agree with Hattio. In this case, he strongly disagreed with recent Supreme Court precedent but followed it, as he was obliged to do. Judge Presnell made some valid points as to why the Supreme Court's decision was unsound and respectfully explained why he thought so in his concurring opinion. His use of "in my humble opinion" did not seem particularly jarring or immodest.
8.22.2007 2:19pm
Cornellian (mail):
There's a funny scene in the British sitcom "Yes, Minister" (one of hundreds) where Humphrey, the senior civil servant says to the Minister "with all due respect Minister . . ." and the Minister curtly interrupts with "Humphrey! I won't have you speaking to me like that!"
8.22.2007 2:40pm
KevinM:
Agreed. If anybody is entitled to his or her opinion, it would be a judge. By the same token, I don't get offended when the Pope pontificates.

There was a WWII era New Yorker cartoon, in which a fascist dictator, surrounded by armed guards and missles, is addressing a meeting. The caption is "And I think I may say, without fear of contradiction..."
8.22.2007 2:48pm
KevinM:
"missiles." not missles (or missals).
8.22.2007 2:49pm
KevinM:
Er, "missiles." Not missles (or missals).
8.22.2007 2:50pm
PersonFromPorlock:
Perhaps judges who use "in my humble opinion" could be addressed as "Your Humbleness." About once, I'd say.
8.22.2007 3:09pm
Libertarian1 (mail):
Having read Judge Presnell's concurrence, I agree with Hattio. In this case, he strongly disagreed with recent Supreme Court precedent but followed it, as he was obliged to do. Judge Presnell made some valid points as to why the Supreme Court's decision was unsound and respectfully explained why he thought so in his concurring opinion. His use of "in my humble opinion" did not seem particularly jarring or immodest

I am not an attorney so probably my understanding of what a Judge should write in an opinion is probably naive. As said above it is apparent Judge Presnell disagreed with SCOTUS in Harris. Because that set the precedent he was obliged, and correctly did so, to follow the law. But it seems to me the place for his dissent would be more appropriate before a legislative body discussing the issue. My question, is it fairly routine for a judge to record his disagreement with a law in his written opinion?
8.22.2007 3:12pm
AK (mail):
Throat-clearing should be cut from all legal writing. A favorite of mine is the word "clearly," which gets sprinkled all over briefs and opinions. If something is "clearly" the case, you don't need to note that it is. "Clearly" is only used where the proposition is not at all clear.
8.22.2007 3:20pm
Hattio (mail):
AK,
Are you my boss posting anonymously? I put in "clearly" all the time (partially because we dictate and its the sort of thing I would note in oral argument). He takes it out every time.
8.22.2007 3:35pm
Daniel San:
A statement disagreeing with the ruling authority is dicta. Dicta means that the court is saying something that does not need to be said, but is saying it because it is so important that it should be part of the record. This is not humility.

Stating, on the record, that a superior court got it wrong, is never humble. It may be accurate, but it is never humble.
8.22.2007 3:40pm
OrinKerr:
AK- agreed.
8.22.2007 3:41pm
CamarilloBrillo (mail):
the word "clearly[]" ...gets sprinkled all over briefs and opinions. If something is "clearly" the case, you don't need to note that it is. "Clearly" is only used where the proposition is not at all clear.


I hear people say that, but I don't think it's a good rule of thumb.

I had a co-clerk who would take pleasure in making fun of practitioners who used the word "clearly". In several cases, I thought the word was accurately used. So, I developed the impression that my co-clerk was mean-spirited and intellectually lazy.

In my humble opinion, there is nothing wrong with using the word "clearly" when (1) the point is actually clear, and (2) you think it helps the meter of the prose.
8.22.2007 3:43pm
Just an Observer:
Some other rhetorical cliches, such as "I respectfully dissent," do serve a purpose of preserving some comity.

Of course, that also can paper over a distinct absence of respect. Does any dissenting judge ever say with more candor, "I angrily and didactically dissent?"
8.22.2007 3:52pm
OrinKerr:
JaO,

I did recently read a dissent that concluded, "I strongly dissent."
8.22.2007 3:59pm
Dave Hardy (mail) (www):
"Clearly" is only used where the proposition is not at all clear.

Chuckle... for a time (maybe still) Justice Dept HQ could not write a brief that did not use the phrase "this is a quintessential case of" at least once.

And I've seen many of use of "on all fours," when the better reference would have been "cf.".
8.22.2007 4:04pm
anonVCfan:
"I respectfully dissent" is often a helpful reminder to all concerned that respect and heated disagreement aren't mutually exclusive.

If a dissent takes personal shots at the majority judges and is extremely disrespectful, such that the phrase rings false, then the problem is likely with the dissent, not the phrase. On the other hand, if the dissenting judge truly believes that the majority opinion is undeserving of any respect, then the phrase shouldn't be there.
8.22.2007 4:05pm
dll111:
Wasn't there a big huff made about Justice Ginsburg's opinion in Bush v. Gore because she ended it simply, "I dissent," instead of, "I respectfully dissent?"
8.22.2007 4:17pm
Adeez (mail):
"If something is 'clearly' the case, you don't need to note that it is."

AK, I respectfully disagree with this statement. But rather than explain why (as others have well articulated), I'd rather explain the reason behind my first sentence (which I would've written regardless of it being the topic of discussion). Warning: I will pepper my attempts at good English with my first language, street slang. So bear with me.

I usually express my disagreements this way to distinguish myself from those: who write just to put someone else down; who just want to let the other person know how wrong or dumb they are; who write only because they’re obsessed with their own perceived brilliance; etc. A great example are those who begin their response to comments with “Um….” What the fuck is “um?” I’ll tell ya: it’s what little bitches say in order to put down others despite the fact that if they said it in person they’d get snuffed for being so smug. But since they have the protection of their computer screens, they feel free to belittle others and use vicious sarcasm because it bolsters their fragile egos. I ain’t one of them, and hopefully they’re the minority on this site.

By saying I “respectfully disagree,” I’m acknowledging to the people to whom I respond that I am not trying to one-up them; that I’m not trying to show that I’m smarter or better educated or the better lawyer. So it’s my attempt to say “I come in peace” and that my only interest is to engage in an interesting debate.
8.22.2007 5:09pm
Cornellian (mail):
But it seems to me the place for his dissent would be more appropriate before a legislative body discussing the issue. My question, is it fairly routine for a judge to record his disagreement with a law in his written opinion?


It is generally not a good idea for a sitting judge to appear before a legislature advocating particular changes in the law as it makes it a bit awkward when parties appear before him on the very same issue. There's an exception for issues related to judicial administration, like the rules of civil procedure.

It's not common for a judge to say something like "Decision X is wrong but it's binding so I have to adhere to it anyway." There is a legitimate basis for writing something like this though. Sometimes the judge will have a strong sense that the binding decision is going to be overruled, e.g. when it's really old, a bunch of other jurisdiction have rejected that old rule etc.. In that case it's legitimate for him to say "Decision X is binding and so I apply it, reaching result A, but if X were not the rule, then for these reasons I would reach result B." That helps the appellate court see the full landscape when they decide whether to overrule X.
8.22.2007 5:16pm
Jay:
As a frequent reader of circuit court opinions, dissents omitting the "respectfully" do stand out. Check out this yesterday from the 11th Circuit where Judge Barkett manages to leave it out twice in her dissent in a method-of-execution appeal which the majority rejected as unduly delayed. http://www.ca11.uscourts.gov/opinions/ops/200713638.pdf
8.22.2007 5:19pm
Dave N (mail):
AnonVCFan,

Your post reminded me of Judge Bybee's dissent where he began his second paragraph with:
My view of the majority's analysis of the evidence can perhaps best be described by paraphrasing author Mary McCarthy: I disagree with nearly every word the majority has written, including “and” and “the.” My profound disagreement is not limited to the facts, but runs throughout the majority opinion.
Smith v. Baldwin, 466 F.3d 809, 829 (9th Cir. 2006). Several sentences later, the paragraph ended, "I therefore respectfully, but vigorously, dissent."

Judge Bea similarly stated in a dissent:
I fundamentally disagree with the majority's presentation of the facts, their reading of the law, and their conclusion that the Nevada Supreme Court's decision rejecting petitioner Plumlee's “irreconcilable conflict” claim was “an unreasonable application of clearly established Federal law” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1).
Plumlee v. Del Papa, 465 F.3d 910, 925 (9th Cir. 2006). Several paragraphs later, Judge Bea added, "For those reasons, I respectfully dissent."

I am not sure which, if either, Judge was being sincere and which, if either, Judge was being sarcastic when he stated, "I respectfully dissent."

(As a side note, both Judge Bybee and Judge Bea must feel some sense of vindication since both cases were ordered to be reheard en banc).
8.22.2007 5:21pm
Markusha (mail):
Orin,
Can you please explain why, in your humble opinion, the concurring judge's intrepretation of Harris is wrong?
In my humble opinion, he did not state that Harris was wrongly decided; I took him to mean that while Harris might have arrived at a correct conclusion under its facts, Harris' "balancing" test is not really balancing anything; realistically, it simply makes it almost always reasonable for an officer to use deadly force against the suspect to end a car-chase. Where I am going wrong? (See, I am trying to be humble ;) Thanks.
8.22.2007 5:31pm
GV:
First, a lot of judges are not humble.

Well, you did clerk for Kennedy; you would know! ;)
8.22.2007 5:43pm
neurodoc:
I don't read too many of the opinions that the Supremes hand down, relying for the most part on summary accounts of their decisions. Out of curiosity, can anyone tell me if Scalia, the dissenter who gets the most attention, usually goes with "I respectfully dissent," "I dissent," or neither? Has he ever "IMHO"ed in one of his opinions? What has been his most noteworthy disrespectful dissent? Has any appellate jurist ever outdone Scalia with the tone of their dissents? (Personally, I think that Scalia is at his best as a dissenter, and on most issues that come before the Court, I hope he will have the opportunity to share in the writing of dissenting opinions.)
8.22.2007 5:59pm
Dave N (mail):
Jay,

Thanks for link. In a very brief dissent, Judge Barkett started with "I dissent" and ended with "Therefore, I dissent" with nary a "respectfully" to be found in her opinion.
8.22.2007 6:07pm
Nick Good - South Africa (mail):
"In my humble opinion" is pretty much like "respectfully", it's laying it on with a trowel, but its true meaning is exactly the opposite of the meaning of the words!
8.22.2007 6:07pm
Smokey:
''IMHO'' seems a very minor point with the general public compared with the evolving perception of the judiciary.
8.22.2007 6:17pm
Anderson (mail) (www):
In my humble opinion, there is nothing wrong with using the word "clearly"

Elementary usage error. Sure, some propositions *are* clear, so that "clearly" could be used properly.

BUT, knowing that it's so often used incorrectly ... and that a substantial number of readers suspect any "clear" proposition of being the opposite ... why raise the red flag?

It doesn't matter what's correct, it matters what effect you create.
8.22.2007 6:43pm
Baxter (mail) (www):
My question, is it fairly routine for a judge to record his disagreement with a law in his written opinion?

When it's done, it's usually done more lucidly than in the Beshers concurrence. Given the prevalence of liberal arts backgrounds, ignorance of basic science is common amongst lawyers and judges alike. (I recall being shocked to learn in early years of practice how many judges could not grasp the principle that a chemical reaction does not merely produce a mixture of the original chemicals.) But one does not often see such appalling ignorance of basic physics so arrogantly put on display as in Judge Presnell's opinion. For the sake of highway safety in the middle district of Florida, I certainly hope he has a chauffeur.
8.22.2007 7:02pm
CheckEnclosed (mail):
A lawyer I worked for once told me to circle the word "clearly" whenever it appeared in an adversary's brief, because it was a red flag pointing out a weakness in their argument. I have remembered this rule to my advantage, and have also tried not to use it, or its cousin "plainly" in my own briefs.

When a legal proposition is clear, you can tell because a brief will state the proposition, then cite to a decision from the controlling jurisdiction handed down last Tuesday establishing that proposition. When a proposition is well settled, a second cite to a decision from the controlling jurisdiction handed down forty years ago is added.
8.22.2007 7:19pm
Fub:
Just an Observer wrote at 8.22.2007 2:52pm:
Does any dissenting judge ever say with more candor, "I angrily and didactically dissent?"
I haven't seen that. But I recall reading a California Supreme Court case, which citation I have forgotten, in ehich Justice Marshall F. McComb's entire dissent consisted of only two words: "I dissent."

(PDF link above is decision in California Supreme Court appeal of Justice McComb's removal from the Court by the State of California Commission on Judicial Performance.)
8.22.2007 7:45pm
OrinKerr:
Markusha,

Scalia's rule was that "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

Presnell's restatement of what that means: "Unless the chase occurs below the speed limit on a deserted highway, the use of deadly force to end a motor vehicle pursuit is always a reasonable seizure."

But those two are very different. There are a lot of chases that do not constitute "a dangerous high-speed car chase that threatens the lives of innocent bystanders" other than those "below the speed limit on a deserted highway." There are chases at high speeds on lightly travelled roads, or at the usual speeds such as 5 or 10 miles an over in normal traffic.

The Scott rule is only for those chases that satisfy the test of being "dangerous high-speed car chase[d] that threatend[] the lives of innocent bystanders," and it seems way off the mark to equate that with any chase other than those "below the speed limit on a deserted highway." Scalia used those qualifiers carefully, and it seems off the mark to ignore or minimize them.
8.22.2007 8:41pm
MLH (mail):
I think Presnell's last appearance in the spotlight may provide some insight.
8.22.2007 10:16pm
MJG:
Orin/others: Scalia has at times fluctuated on the "respectfully dissent" custom, and in the Seattle v. Parents Involved Case Breyer wrote, in what I believe was a first, "I must dissent." Certainly made where he stood quite clear.

In terms of the original post, if ever "In my humble opinion," would apply to a judicial decision, I would think it would be this one where the judge disagrees with a Supreme Court case on point but nevertheless follows and applies it. That said, I think if you are going to say anything at all you should just say it like it is: pop in a footnote that says "In my opinion, Scott v. Harris was wrongly decided." Then everyone can safely ignore it and you, having made Your Big Announcement, can sleep at night. I think Orin's original point is accurate, there is little "humble" about completely disagreeing with an 8-1 Supreme Court decision and announcing that we will live to regret it. I think you could surely write "I respectfully believe that Scott v. Harris was wrongly decided, and we will regret that decision" or something like that. Judges are supposed to say what they think, and if you really believe some case was decided wrongly, you should say so. But there's nothing humble about it.

In any event, I'm glad Orin posted to this, because this must be one of the first cases construing Scott v. Harris, no? I see that The Videotape made another strong showing here. From footnote one:


We are required to view all facts and draw all reasonable inferences in favor of the
non-moving party when reviewing a grant of summary judgment. Brosseau v. Haugen, 543 U.S.
194, 195 n.2, 125 S. Ct. 596, 597 n.2 (2004). The Supreme Court recognized in Scott v. Harris,
127 S. Ct. 1769, 1775 (2007), that this typically means adopting the plaintiff’s version of facts in
a qualified immunity case. Nonetheless, in this case, as in Harris, we have the benefit of
viewing two videotapes from the patrol cars involved in the pursuit. Thus, to the extent
Appellant’s version of the facts is clearly contradicted by the videotapes, such that no reasonable
jury could believe it, we do not adopt his factual allegations. Id.


I still think Stevens' point about reviewing the videotape to make de novo factual review was a pretty novel development in Scott v. Harris, and at least deserved more than the footnoted mention Scalia gave it. Stevens' point about the eight "jurors" in the case was still a good one. (I'm not saying that decides the case or meant it was wrongly decided - Orin had a post talking about how their facts were not so different - but the videotape thing I still find odd, kind of funny, and possibly even troubling.)
8.23.2007 12:26am
rarango (mail):
I dont put much stock in learned judge and humble opinion, but i think that kind of quaint terminology helps take the raw edge off proceedings--rather like the parliamentary language in use in Congress and the UK. (and yes, I am aware that no one believes any of it)
8.23.2007 10:44am