Judge Rader on Judging (An Interview with Gene Quinn)

Quinn: [Question about deliberations.] 

Judge Rader ("Rader"): When we come off of the bench we immediately sit down as a panel of 3 and convene our conference. The junior Judge most always speaks first, and we do that for two reasons. One is to ensure a kind of judicial independence. The junior Judge cannot defer to the more experienced senior Judges, but must prepare his or her own independent opinion, which will be presented first in an oral fashion. And there is another reason for it, and that is if the first Judge and the second Judge differ then the presiding Judge can kind of rock back in his or her chair and listen, let the two Judges represent the case and receive the benefits of that revisitation of the issues before making a decision that will decide the outcome of the case.

. . . We do not discuss the cases in advance. Now, I've worked with everyone on this Court for many years and I generally predict with some degree of accuracy how they are going to vote. So I will often predict when we will have a split, but I am not always accurate on that. The conference is when we really decide and we discuss and come to a resolution. The second order of business, after we have discussed the outcome, is to decide how to resolve it. We decide whether to issue a simple Rule 36 affirmance, which is a standard 1-page order that affirms on the basis of the judgment below. The second way of dealing with it is a non-precedential opinion, which is a short 5 page opinion written solely for the benefit of the parties that is not binding on the Court in the future. Then there is the standard precedential legal opinion that you see regularly and discuss and which you see in case books. By the way, I think we tend to do about one-third of each; one-third of summary affirmance, one-third of non-precedential opinions and one-third of full-blown precedential opinions.

After we have decided the outcome and how we are going to decide it, then we assign the opinion. The senior Judge in the majority assigns the case. If the Court has been unanimous in the outcome then it is the presiding Judge making the assignment. Usually the assignment is not a very formal process. Usually it is kind of a volunteers-accepted situation where Judges speak up and say "I'll take that one," and we distribute the cases amongst ourselves. But then in other instances the presiding Judge may have a preference. He or she usually gets to speak first and will pick those cases the presiding Judge wishes to author and then assigns the other cases to the remaining Judges.

At that point by the way, you started talking about dissenting, it's at that point that the Judge who has voted against the outcome would express whether they are going to write a dissent and that is always good notice to have.

The difference in writing a dissent is very clear. Take a look at my dissents versus majority opinions. And that is probably true of any other Judge as well. When you are writing a dissent you don't have to discipline yourself to be as clear, concise and brief in discussing the Court's precedents and the Court's law. You are able to say pretty much what you want in the way you want. It becomes more colorful, more metaphors, more analogies, more fun. [laughter]

Quinn: [Question about audience for dissenting opinions.]

Rader: Dissents tend to have two or three audiences. One audience is, of course, the Supreme Court, if it is a case of sufficient importance that the Court might take it. For instance, in Bilski I figured I was writing for the Supreme Court. A dissent is also written to other members of the Court. I have had a pleasant experience several times of writing a dissent that became the majority because it was written with enough impact to cause one of the other Judges to change their vote. That happened just recently in one of my opinions. One of the Judges initially voted one way, read the dissent and it was strong enough to convince that Judge to change his vote and became a part of the majority. So that is another audience. You usually know when there is a chance of changing someone, so you write with that audience in mind. More often the audience is the bar and practitioners in general and your idea is to preserve what you think is the wiser course of action and present it in a way that may come back to the Court in another time and another case and may perhaps become in the future a majority. I've had that happen on occasion as well.

Quinn: [Question about the value of appellate judges occasionally hearing jury trials in patent cases.]

Rader: I think particularly other members of the Federal Circuit would benefit from that experience. . . . The job of an appellate Judge is to review a record for reversible error; to correct errors. In order to correct errors based on a record you need to understand the challenges of making a record, you need to understand the challenges of administering a trial and narrowing issues. As an example, I see very often in appellate practice where the losing case will seize on some minor issue and try and elevate that to an issue of great importance before the Court of Appeals when in fact all of the parties had dismissed it as of marginal significance when before the trial court. So the Appellate Court ends up considering and making decisions on something which was only marginally considered by the court below.

It strikes me that we ought to be reviewing the decisions that were made below. We should not allow parties to present to us as if they were major decisions, things that were part of the narrowing exercise, which a trial court must necessarily do. The value of sitting as a trial judge is you can recognize this. When you have done it yourself you know what a challenge it is to narrow issues and have developed a record that reflects your accurate decisions.