Indybar: Throw Out ‘Throw Out’

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By Will Gooden, Clark Quinn Moses Scott & Grahn LLP

This is the first of what could very well be more than one submission in my role as guest columnist in this space. Subbing for Judge Alicia Gooden has been a way of life for me since … well, since sometime shortly after Aug. 12, 1995 (HE REMEMBERED HIS ANNEVERSARY!). Come to think of it, I probably pinch-hit in one or more of our law school classes prior to marriage. I digress.

Another initial observation to preface this piece is that I may very well, at first blush, be seen as preaching to the proverbial choir. But on reflection, I hope that all of you reading this (and all of those to whom you hopefully mention this article, if you find it worthwhile) will see that I am not so much preaching to the choir as I hope I am spreading the good news of the gospel for all of us believers to share. You see, this topic has stuck in my craw for many a year and despite saying to myself (and aloud yelling at the TV,) “Dammit, I am going to write an editorial about this,” I haven’t ever done it. Enter Judge Gooden lamenting her schedule this Bench Bar Conference week and away we go.

Our subject today is the ubiquitous, but seemingly ingrained and unchallenged, use of phrases such as “throw out,” “threw out,” “tossed” and “tossed out” to describe certain decisions of courts of all kinds and at all levels. In years past, the blame lay chiefly with reporters and news outlets. Today, of course, such short shrift is the medium of not only journalists (sadly) but also bloggers, social media influencers and, worst of all, regular folks, into whose everyday vocabulary these lazy and frankly damaging shortcuts have crept. Colleagues, it is up to us to do our part to end this scourge!

Seriously, all of us have read many an article or social media post, heard a TV or radio news report or listened to a friend rant at a get-together about a case that was “thrown out” or “tossed out.” These appear almost daily and at all levels — local, state and national. Those of us reading this understand the use of these descriptors is typically employed in the context of reporting on a court decision at the motion stage. The court grants a motion to dismiss or a motion for summary judgment and the decision is reduced to a couple of words.

“What’s the big deal?”, many may say. Maybe even many of us lawyers and judges who understand what is really behind these decisions let it slide, assuming it pointless to waste energy and time trying to convince laypeople that our “technicalities” have real impact and meaning. But we need to do just that.

All of us know the effort, time, emotion, study and sweat that go into lawyering and judging at all levels. We are not unique in our toil, no. Many a person labors and struggles at their craft. But in order to further the interests of justice and confidence in the judicial system, we simply cannot let slide the use of today’s subjects. Let’s face it: When even the worldliest and most educated read in, say, The New York Times, that the United States Supreme Court “threw out” or “tossed” the such-and-such case, is it not easy to understand how many of our fellow citizens might feel disenfranchised and skeptical about our judicial system?

You and I know that the time, effort, agonizing, research and sheer hours invested in the briefing, writing, preparing, arguing and deciding of motions to dismiss or for summary judgment, not to mention, for goodness’s sake, motions for mistrial or for judgment on the evidence, is significant and vitally important to our jurisprudence. Thus, we owe it to our profession and our judicial system to take the time to explain what is behind cases that some would describe as having been “thrown out.”

Leaving these phrases to hang in the thick air results in the very real possibility that the populous assumes that either the case at issue had no merit whatsoever or the judges were lazy. This erodes confidence in our system, confidence that is ever easily undermined in this age of instant access and “all-eyes-on-at-all-times.”

Colleagues, I urge you to do what you can to shed light on this issue. Talk to your friends and family about what is really behind the work of lawyers and judges and, most importantly, what is at stake for their clients, in the context of judicial determinations. Explain that just because a case doesn’t make to trial, with all the attendant fanfare, does not mean that measured justice was not served.

Friends, we owe it to our profession, our fellow citizens and, most importantly, our constitutional judicial system to do our part in working hard to … throw out “throw out!”•

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