This dispute about some easements is of no interest to anyone but its parties. Interesting opinions – or opinions at all, for that matter – have been thin on the ground lately. But this one gives us a chance to comment on an aspect of Court of Appeals style we haven’t mentioned in awhile.

No, it’s not the long, useless standard-of-review paragraph; here it’s as useless as ever but that’s not something we haven’t mentioned in awhile.

It’s the paragraph after that one. The case was primarily a fight about whether an easement had been abandoned. The paragraph, no. 7, begins the court’s legal analysis by telling us that “an easement is a right to use the land of another for a specific purpose.” It cites a case. It also tells us, again with citations, that an easement runs with the land, and one or two other things of equal complexity. None bears on the issues in dispute. The paragraph is superfluous; its omission would change nothing.

So why is it there?

Perhaps these were novel concepts to the person who wrote the opinion. In this particular case we don’t know. But it seems not infrequently that an opinion’s subject is new to its author, who can’t quite tell the go-without-saying ABCs from the important parts. Because people allowed to write opinions often have little or no experience in the practice of law that is only to be expected. If we’re going to live with that system, though, we should also be able to expect that a judge would at least read the draft and red-pencil this stuff.

(We don’t, by the way, mean to be too critical of those nameless neophytes; they don’t get enough  opinion-drafting instruction and what they do get is often wrong. The best they can do is to stumble along using the monkey-see-monkey-do method, which is how many practicing lawyers also get by.)

Another reason is that courts routinely break the writer’s cardinal rule and forget, or don’t care about, who their audience is. Nobody who wants to read an opinion about the abandonment of easements needs to be told what one is.

And then there’s the possibility of cite-itis, a malady characterized by writing opinions so as to get them cited as often as possible and maybe even printed in casebooks. The virus was spread years ago by a former Supreme Court Justice.

Whatever the reason, this is useless bloat. But don’t hold your breath waiting for it to go away.

(link to opinion)

This is a memorandum but raises a notable procedural point.

In this malpractice action, trials on liability and damages were bifurcated. After the hospital lost the liability trial it filed this appeal. Beatty moved to dismiss it for lack of jurisdiction. The hospital responded that there was an “interlocutory judgment that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery,” which is appealable under 12-2101(A)(6). The Court of Appeals denied the motion.

But in this opinion it reverses itself and dismisses for lack of jurisdiction. Though not technically covered by Rule 54b, 2101(A)(6) is a 54b-type situation: the trial court must expressly find a final determination of the rights of the parties and, in the trial court’s discretion, that it is subject to appeal. (The Arizona Supreme Court case on which this is based says that 54b language will do the job.) Here the trial court had found that “judgment remain[ed] subject to revision at any time before the entry of judgment adjudicating all of the claims and rights and liabilities of all of the parties,” and that  “This is not a final judgment except as to jury fees.” And it said nothing about appeal.

Beatty had raised the jurisdiction argument again in his brief. Technically that shouldn’t be necessary, since you can’t waive jurisdiction, but the panel might not have paid any attention to it otherwise.

The hospital argued (whether in its brief or in the motion papers isn’t clear) that if there were no jurisdiction of an appeal then the court should treat the matter as a special action. But there was no basis for doing so other than the time and expense of re-filing the appeal (either after a liability trial or after convincing the trial judge to re-word his orders). The court says that ““efficient use of resources” alone generally is insufficient to justify special action jurisdiction.”

(link to opinion)