Ghost(write) of a chance – The Ukiah Daily Journal

Public life has changed in recent generations, among other things, because politicians, especially at the highest level, hardly ever write their own speeches. It’s hard to imagine, for example, that Abraham Lincoln would have someone “pimp” the Gettysburg address, or that Winston Churchill “borrowed” all those memorable phrases he was famous for from a draft someone else had written.

But today you can make a respectable career as a speechwriter, whether it’s for a governor, senator, or most importantly, the president. Even Barack Obama, who was probably the best orator of his generation when he was president, had other people draft his speeches. Hell, some of these people now run the media company Pod Save America.

But that doesn’t just happen in political speechwriting. A lot of people discover this when they ask someone for a letter of recommendation and may be surprised (at least the first time) when they’re told, “Okay, write something down and I’ll sign it.” And really — has there ever been a heartier letter of praise than the one you are allowed to write about yourself?

But it turns out that this practice is not acceptable in every public institution. Or at least there is something wrong with the Third Circuit Court of Appeals that oversees the Commonwealth of Pennsylvania.

The case that raised this important issue in 2004 involved a man named John Bright, whose 12-year-old daughter, Annette, was killed by a certain Charles Koschalk. Koschalk pleaded guilty to murder and was sentenced to life imprisonment.

Bright then filed a lawsuit in Federal District Court for the Western District of Pennsylvania, but surprisingly it did not focus on Koschalk — in fact, Koschalk is the latest of nine defendants in the lawsuit. No, Bright saved most of his anger for eight Westmoreland County, Pennsylvania employees who were responsible for monitoring Koschalk while he was on probation for a previous crime. Bright claimed that her failure to keep tabs on Koschalk allowed his daughter to become Koschalk’s final victim – which apparently made her sound more culpable than Koschalk himself.

The eight public defendants asked the court to dismiss the case, arguing that according to various legal theories, they were not solely responsible for Koschalk’s crimes because they kept tabs on him (and many other villains in the community). And at an early meeting between the attorneys and the federal court, the judge indicated that he would indeed dismiss the case. He asked the defendants’ lawyer to present a draft resolution in support of the release.

The defendants did just that and the case was dismissed. Bright appealed and focused his entire argument not on whether the trial judge’s reasons for dismissing the case were wrong, only on how he had done it. In particular, he complained that the trial judge should not have used the draft opinion prepared and submitted by the defendants’ attorneys.

The appeals court compared the draft opinion to that signed by the district judge and found that “this proposed opinion is nearly identical to the opinion filed by the district court. Aside from minor grammatical and stylistic changes, the district court made only two substantive changes.”

The appeals court then said it reversed the trial court. It stated: “Judicial opinions are the core work product of judges. They are far more than statements of fact and legal conclusions; they provide the logical and analytical explanations of why a judge reached a particular decision. They are tangible evidence to the litigants that the judge actively wrestled with their claims and arguments and made a scientific decision based on his own reason and logic. If a court accepts the opinion proposed by a party as its own, the court violates the essential purposes served by judicial opinions.”

HM Yes.

Well, the Court of Appeals had a point – at several points, the Opinion written for the lower court actually ruled on things that the defense attorneys hadn’t even considered the judge. Apparently, writing a draft opinion or directive is a bit like eating your first potato chip – once you get going, it’s hard to stop.

But lawyers routinely do this for judges. In fact, many federal courts require that if a party seeks the court to rule on an issue of any kind, that party must file a “proposed order.” Many judges use this draft regulation as a “roadmap” to decide the case, even if they don’t use this draft as their own decision.

And that’s because lawyers write opinions and orders for them instead.

Frank Zotter, Jr. is an attorney at Ukiah.