Gamesmanship, tunnel vision and justice

Gamesmanship is "destructive."

Michigan Court of Appeals Judge Peter O'Connell: Gamesmanship is 'destructive.'

Michigan Court of Appeals Judge Peter D. O’Connell is among the few who got to the appellate bench the old-fashioned way – campaign and election – instead of the usual route, being appointed to fill a midterm vacancy.

He’s a thoughtful jurist. He’s an eloquent writer. And he wants to reduce gamesmanship in litigation by asking everyone, both bar and bench, to look at the bigger picture.

The vehicle he’s using to broadcast his message is his concurring opinion in Shawl v. Spence Brothers. (published per curiam) (Wilder and Whitbeck, JJ.).

Some background: The majority reversed a default entered against a general contractor after its insurer didn’t timely respond to an injured worker’s complaint. The majority, after surveying prior, nonbinding case law, extracted this rule

[A]n insurer’s negligence should not be conclusive on the procedurally non-negligent defendant. A defendant who diligently turns over a case to an ultimately negligent insurer should not be denied his or her day in court. The defendant is not “obligated to call daily to see whether the insurer did what it had contracted and accepted a premium to do.”

The majority also said that courts should consider the “totally of the circumstances” to determine whether the two necessary ingredients for setting aside a default – good cause and meritorious defense – are in the mix, and included two lists of factors to help judges make those determinations.

Judge O’Connell used the majority opinion as a springboard to discuss gamesmanship and judicial tunnel vision. From O’Connell’s concurring opinion:

At the outset, I stress that this opinion is not intended as an analysis or criticism of either the trial court or the majority’s methodology in resolving this case, but as an opportunity to address and reduce the gamesmanship that creates hostile attitudes and friction among litigants, lawyers, and the bench. Some attorneys maintain that gamesmanship is a fundamental and ingrained aspect of the legal process, and that attempts to compete with or outdo their opponents are not only appropriate but also required for zealous advocacy. I contend, however, that this gamesmanship attitude, which is all too prevalent in today’s law practice, is more destructive than helpful, because it brings disrespect upon the law, the litigants, and our shared concept of justice. Although I have no illusions that the game theory of law practice will be eliminated, I remain hopeful that this gamesmanship can be reduced through the application of the totality of the circumstances test to the process of administering justice. Indeed, one purpose of this opinion is to ignite discussion on the topic.

O’Connell isn’t saying the baby should be thrown out with the bath water:

Dismissals and defaults are the system’s mechanism for sanctioning those whose conduct does not fall within the confines of the rules. … Litigants who purposefully and repeatedly act outside the scope of, or fail to follow clear and concise, rules deserve special and prompt attention from the court. However, if a timely meritorious claim or defense is alleged and the conflict of the parties reasonably falls within the set of rules at issue, the law favors a lesser sanction than default or dismissal. … But, not all cases are meritorious and not all defenses are worth pursuing, particularly if the costs of litigation exceed the benefits or burdens to the parties. That is why, in my opinion, the best manner in which to balance these issues and reach a fair and just decision is to weigh the totality of the circumstances.

When judges are sifting through the facts and circumstances, says O’Connell, they should take a panoramic view because judging is an art, not a mechanical process:

Every case is different, with factual nuances that must be identified, evaluated, and balanced to reach a proper result. Only an experienced judge with common sense, wisdom, and a sense of justice is empowered by our constitution to make the correct decision. It is the judge who also exercises patience that generally utilizes the correct process. However, a judge that focuses solely on single process, to the exclusion of all else, sometimes experiences methodological tunnel vision. The process then becomes perfunctory and often results in unjust, illogical, and incongruous outcomes.

I find this occurs most often where, as in this case, “procedure is substance.” The merits of the case are left in the wake created by the procedural rules. In such cases, the manner in which the procedural rules are implemented can be more important than the substance of the case. The journey becomes more important that the destination. The totality of the circumstances test is an attempt to distinguish those occasions when the bright line application of the rules is appropriate (such as dismissal for failure to file within the statute of limitations) with situations where the rules themselves involve abstract concepts of justice (as with the use of the term “good cause” in the default judgment context). In the latter case, the art of judging cannot become a mechanical or computer-like process.”

O’Connell’s words are a thoughtful reminder that lawyers behaving as warriors and rulings from the bench that exalt form over substance sometimes thwart the court system’s primary mission – dispensing justice.

It’s something to think about over the long Labor Day weekend.

1 thought on “Gamesmanship, tunnel vision and justice

  1. Judge O’Connell, my colleague, is indeed an excellent jurist, thoughtful–thought-provoking–, thorough, and very dedicated.

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