I have read various articles over the years about how you should never ask a judge if they have read the papers. Thurmon Arnold, one of my favorite bloggers, commented in a post on advice for self-represented litigants the following:
- Rule #6: Never Assume the Court Has Read the File, and Never Ask
Never assume the Court has read your pleadings. But asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they’ve admitted on the record they’ve not read the file.
I am frankly appalled by this viewpoint, not because I want to engage in Judge-bashing and think that somehow this problem is the result of someone who just doesn’t want to do their job (which is the exception, and not the rule, in my opinion), but because the greater questions arises: how can this be the appropriate response?
The legal system cannot function if the people making the decisions do not have the information they need to make the decisions. If there is a regularly occuring dynamic in which this is not only allowed to occur, but one is ill-advised to point it out, how can there be a serious claim to a legitimate process?
If there is too much for one person to read, and they cannot control the court by means other than snap-decisionmaking, then the answer is not to sweep it under the rug.
I am not concerned about embarassing anyone. Neither my feelings, nor those of the court, nor those of a litigant are more important than a fair, adversarial process which cannot happen without a perusal of the information.
If things aren’t being read, the practical answer, at the moment, may be to say nothing. But this is not an acceptable, responsible, nor ethical response to a long-term problem.
