For many, most law review articles have little relevance. But a recent article by Justice Fasciale, published in the Seton Hall Law Review at 53 Seton Hall L. Rev. 1043 (2023), available here, should be of great interest to appellate practitioners, judges at all levels, and anyone who is interested in the process of decisionmaking by judges.
The article, titled “A Case Study Analyzing How Trial Judge Experience Shapes Intermediate Appellate Review of Discretionary Determinations,” proceeds from Justice Fasciale’s own experience as a trial level judge serving in the Civil, Criminal, and Family Parts, as well as in the Recovery Court (then known as the Drug Court). He then sat in the Appellate Division for twelve years before being elevated to the Supreme Court by Governor Murphy last fall. In short, he has touched every judicial base and is eminently qualified to opine on the important matters addressed in this article.
Though the core of this very accessible and readable article focuses on the ways in which service on the trial bench informs, and improves, intermediate appellate review of discretionary decisions by trial level judges, Justice Fasciale has also presented a fascinating description of the history and evolution of New Jersey courts. He notes that prior to the 1947 New Jersey Constitution, appellate judges in New Jersey state courts also served on the trial bench. Justice Fasciale explains that “[t]hese baked-in judicial trial/appellate dual roles originated in medieval England, continued through our country’s colonial times (1660s to 1776), and persisted with New Jersey’s 1776 and 1844 Constitutions.”
As Justice Fasciale details, this “dual service” caused great headaches to the judicial system and to litigants. In part for that reason, the 1947 Constitution abrogated dual service, but did mandate that the Appellate Division comprise only jurists who had first served as trial judges.
Turning from history to the practical impact of Appellate Division judges’ prior service at the trial level, Justice Fasciale offers a non-exhaustive list of seven ways in which that prior experience can improve intermediate appellate court review of discretionary decisions by trial courts. “Prior trial judge experience can shape how the judge: (1) evaluates the correctness of the ruling; (2) considers whether the ruling was harmless; (3) perceives what was happening at the trial level; (4) writes more compassionately, sensitively, and with greater patience; (5) demonstrates confidence to write shorter unpublished opinions for litigants and counsel; (6) defers generally to credibility findings; and (7) enlightens an appellate judge’s understanding of the life of the law.” His insights into each of these factors provide an excellent window into judicial decisionmaking.
Justice Fasciale carefully notes, however, that his article is limited to the work of intermediate appellate judges, such as those in our Appellate Division. As he correctly observes, our Supreme Court and other courts of last resort function differently than do intermediate appellate courts. “The Appellate Division is primarily a court of corrections in which litigants have an absolute right to appeal from final judgments or orders. The Supreme Court’s docket is not consumed, like that of the Appellate Division, with thousands of nuts-and-bolts appeals requiring adjudication of discretionary rulings made at the trial level.” Rather, the Supreme Court deals with issues whose implications and effects go beyond the particular case presented. Service as a trial judge can be beneficial to those who sit on courts of last resort, but “prior trial judicial experience shapes decision-making in different ways because the work and adjudication of appeals at both levels are not the same.”
There is plenty more to learn from Justice Fasciale’s masterly article, written while he was also carrying his judicial workload. It is well worth reading in full.