Brethauer v. General Motors (CA1 3/31/09)

We review this case as part of our ongoing griping about memorandum opinions. This isn’t one – but most of it should be.

This was a products-liability case alleging a defective seatbelt. Plaintiff lost at trial. He appealed on the basis of several evidentiary rulings and a jury instruction.

The instruction issue was of legal substance. The appellate court ruled that the trial court gave the wrong strict-liability instruction but that it wasn’t reversible because it was at least a strict-liability instruction, not a negligence instruction, and was therefore close enough for government work. (We kid, but only a little.)

Before you get to that, though, you have to wade through fourteen pages that discuss (at some length; Judge Timmer has never, to our memory,  risked terseness) very routine evidentiary rulings. Little, if any, of this comes within a mile of being publishable.

ARCAP 28(g) requires that only the publishable parts be published; the court “shall” issue the rest as a memorandum. To be honest, we don’t really like that rule, as we don’t approve of an opinion in one case being split up into pieces. But at least it has the virtue of reducing the extraneous garbage that lawyers have to read every day. And as long as its on the books, ignoring it will get that extraneous garbage cited back to the courts in other cases. If it wasn’t important, after all, why was it in a published opinion?

The courts should obey the rule or abolish it.