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Wise v. Polis (CA2 memorandum 11/18/08)

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This is an inconsequential memorandum decision. Why blog it? To say a word, or two, about memos.

We know this is a memorandum decision because it says so at the top of the first page. It is otherwise indistinguishable from a published opinion: the form, style, and content are exactly the same, including the careful description of the facts and procedure, the he-said-she-said recapitulation of the parties’ arguments, the standard form paragraph reminding us for the nine-hundredth time what the standard of review for summary judgment is, the section headings, the footnotes, and the whole nine yards of what passes for “style” in opinions nowadays (which deserves a separate rant of its own – or, better yet, several —  but isn’t the subject of this one). The opinion is twelve pages long.

Why in the world do this with a memorandum?  A memo will be read by the parties and, possibly, by courts above and below. All any of them wants to know is which argument won.  The parties already know the rest; other courts can be told or reminded. As for the law, explanation of law is precisely what memos are not about.

A memorandum opinion should be a page or two long, the size of a long minute entry from the trial court. Like a minute entry, it should be an announcement, not a piece of literature. To write a memorandum just like a published opinion is a waste of judicial time and resources.

So why do the courts do it?

When our courts started doing memorandum opinions, disappointed litigants accused them of using memos to hide prejudiced, partisan, or merely sloppy decisions. And so the courts were careful to write long memos. But that wasn’t enough, the memos were “hidden”; so the courts put them on their web sites. But that still wasn’t enough: once memos looked like published opinions, and were publicized almost like published opinions, it became an “injustice” that they couldn’t be cited like published opinions. At that point, thank goodness, the courts had had enough: the Supreme Court not long ago turned down a requested rule change that would have allowed memos to be cited.

The courts have themselves to blame. They should have drawn the line on memoranda years ago. Judges should of course be responsive to criticism: to the criticism that memos try to hide something, they should respond “No, they don’t.” It is not a necessary part of  judicial demeanor to cringe at every petulant accusation, nor to waste your time trying to appease the simple-minded incomprehension that passes as sophisticated skepticism among far too many lawyers.

But the joke is on lawyers, who never quite seem to catch on to how things work. When judges want to pull a fast one they never hide it in a memo. They publish it for all the world to see, using one or more of the usual tricks of the trade, e.g., citing the wrong case and never mentioning the right one, accusing the lawyers of misunderstanding the precedent (when in fact their understanding is inconveniently accurate), using rhetorical and emotional flourishes to hide the missing links in the chain of reasoning. Those sorts of opinions are routinely praised, which shows what acute observers most lawyers are.

1800 Ocotillo L.L.C. v. The WLB Group (11/3/08)

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The Court has used this business dispute to deliver a major statement on assumption of risk and contractual limitation of liability.

1800 hired engineering firm WLB to survey property; the survey missed a right-of-way and 1800 sued WLB for the resulting damages. WLB’s contract limited its liability to the amount of its fees. The Court upheld the provision.

Presumably, the Court accepted this case to try to undo the damage done by Phelps v. Firebird Raceway, 210 Ariz. 403. That was the case that said that a voluntary, contractual waiver of liability was not binding because it was an “assumption of risk.” This was a classic example of expanding what were once rather clearly-defined tort principles, denying that any expanding is going on, and using the result to trump what used to be thought of as reason, common sense, and our legal rights.

1800 does not, of course, suggest that Phelps was guilty of anything more than sloppy wording. Instead, it gives us a clarification of what “assumption of risk” means. The rule of 1800 is this: assumption of risk completely protects the defendant from liability; merely limiting liablility is therefore not assumption of risk. The opinion does us the favor of stating this clearly and repeatedly.

Whether this restores the right to deal contractually with risk, though, depends on how limited the liability can be before it will be seen as no liability at all. Would a provision limiting the Raceway’s liability to one cent change the result in Phelps? How about $1,000.00?

So as to avoid showing any undue concern for the law of contract, however, the Court remanded the case for consideration of whether the provision was valid under Darner.