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The Role of a Judge

On 2/4/2022, the case of Cador v. YES Organic Market Hyattsville Inc. was filed in the Maryland Court of Special Appeals. This is the link

The author of the opinion is retired Judge Charles E. Moylan who is still going strong at age 91. He’s been retired for 21 years. I first crossed paths with him in 1972 when I was a law clerk for a COSA judge. My judge was on a panel with him on a 4th Amendment search and seizure case and I thought there should be a reversal. My judge told me he would vote to reverse if I could convince Judge Moylan. I failed; I didn’t know that search and seizure cases were his expertise. Anyway, I love his opinions as he often explains difficult legal concepts in easy to understand language. This is one of them. Note that the case was about contributory negligence but I quote from his explanation of the role of a judge:
A judge, as legal referee, does not engage in factfinding. In cases of undisputed evidence, the judge need not do so, for there are no disputes to be resolved. For some rulings as a matter of law, moreover, even apparent disputes may sometimes be finessed, as the judge accepts as fact that version of the evidence most favorable to the non-moving party. Such a version of the evidence is something not in dispute. The evidence, as it indisputably exists or is presumed to exist, either is or is not contributory negligence, as a matter of law. The judge, therefore, may make a legal decision as to it by way of Summary Judgment or a judgment in the course of the trial or a judgment N.O.V. without engaging in factfinding. Appellate review, moreover, is not deferential. Where things are determined as a matter of law, the appellate court will make its own legal determination, de novo.
In the case of disputed evidence, on the other hand, factfinders play a very different role. Factfinders exist for the very purpose of resolving disputes. Unlike the judge-as-legal referee, the factfinders have wider discretionary options. Appellate review, moreover, will be very deferential to almost anything that the factfinders decide, just as it will be deferential to the trial judge’s legal decision to let issues go to the factfinders. The factfinders may be persuaded to find in one direction or in the other by the parties to the case. That burden of persuasion, to whomever it belongs, incurs the risk of non-persuasion.
Figuring prominently in the exercise of persuasion, along with such factors as the credibility of witnesses and the logical cogency of the competing propositions, is the phenomenon of drawing inferences. The factfinder may be persuaded that from the existence of Fact A, one may infer the existence of Fact B, the ultimate fact itself. It is here, however, that the risk of non-persuasion looms large. Inferences may be drawn, but they may also be declined. Inferences may be contradicted by counter-inferences. This inferential swirl and counter-swirl is a world wherein the judge-as-legal-referee does not operate. The judge’s rulings are existential; the jury’s findings, on the other hand, may be inferential. For the judge, it is not a case of “may be;” it is a case of “is” or “is not.” The jury is not so limited.
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