Maryland judges disgorge 322-page decision
Judges like to remind attorneys to keep it brief and to the point, but judges can be guilty of the sin of verbosity, too, writing mind-numbing decisions that read more like law review articles.
The new poster child for judicial long-windedness is a 322-page opinion issued last week by a pack of Maryland judges who had trouble agreeing on what to do about a $150 million verdict against Exxon-Mobil over a neighborhood gasoline spill.
The nine judges of the Maryland Court of Special Appeals in Thursday’s decision in Exxon-Mobil v. Ford needed upwards of 90,000 words to decide the fates of 88 households affected by a 2007 gasoline leak from a Jacksonville, Md., Exxon Mobil station.
The en banc court ultimately decided to uphold most of $60 million a jury awarded on the plaintiffs’ property damage claims, but overturned $14 million for medical monitoring. In addition, the court decided that a new trial was necessary on claims for emotional distress, striking tens of millions awarded by the jury.
That fairly simple result was reached by a tortuous, word-strewn path. Shifting majorities on the hotly contested issues of whether the plaintiffs could recover for fear of cancer and medical monitoring resulted in four separate concurrences and dissents.
While one majority concluded that the plaintiffs could recover for fear of cancer, another majority decided that the trial court had improperly instructed the jury on that issue. Complicating matters for the unfortunate trial judge is the fact that the appeals court judges apparently couldn’t agree on the proper jury standard in fear of cancer cases.
Unfortunately, the court’s 322-page opinion still has the parties and their lawyers trying to figure out exactly where they stand.
Okay, this was a complicated case involving a massive trial record (the trial began in October of 2008 and lasted for five months). And the case did raise unsettled issues of Maryland law involving the recoverability of damages for fear of cancer from toxic contamination and medical monitoring.
And the judges on the Maryland appellate court obviously have strong views on these issues, so it is understandable that they would pull out all the stops to stake out and explain their positions.
But 322 pages, really?
Whatever happened to the virtues of brevity and clarity?
It’s not uncommon for judges and their law clerks to have law review somewhere in their background. Most judges, fortunately, succeed in keeping the law review style out of their opinions.
But some judges just can’t seem to help themselves, absolutely delighting in the three-paragraph footnote and obscure precedent.
That’s why you get a 322-page opinion that takes days to make sense of.
As a guide to the parties, their lawyers and other judges in the state, the decision in Exxon-Mobil v. Ford fails miserably. You’d hope that that the judges on the court of appeals would have been able to do a better job at consensus building and pruning their legal arguments.
After all, Chief Justice Marshall somehow managed to wrap up Marbury v. Madison in under 10,000 words.
– Pat Murphy
