Ever read an opinion and thought "The discussion in the opinion bears no resemblance to the issues as presented in the briefs"? Looks like it can be a valid reaction. See the concurring note of CJ Gray in Lockwood.

Yes, I have noticed the phenomenon. I always wanted to know why. Suspect more than one reason though: poorly briefed, inexperienced briefing attorneys, judges missing the point. The CJ certainly calls them as he sees them.

JAS

Would have been nice if Gray had attached the brief as an appendix, so that we could see the distance between the opinion and the issues raised in the brief.

JAS has identified factors that can act as multipliers, but I would say that poor briefing can be the strongest reason behind an opinion that looks nothing like a brief.

A poor brief may not identify issues of law, or may mis-identify those issues. The poor brief then leads the inexperienced and overworked briefing attorney along the wrong research trail. The briefing attorney then drafts a memo or opinion for a judge whose experience lies in a different area of practice and who has thirty pending opinions at any time. "For want of a nail . . ."

Or, this could simply be a case of the court re-drawing the issue in the case. That may be the case, as the opinion indicates the parties were focused on other facts and law related to the sufficiency of the evidence. Appellate courts do that, even in cases where both sides thoroughly brief an issue.

Finally, think about what court this is coming from. Everyone here has noticed how Waco is struggling to maintain a collegial court. Moreover, this court has been reversed for reaching out to reverse on issues that weren't briefed by the parties. Pena v. State, 191 S.W.3d 133 (Tex. Crim. App. 2006). This opinion could simply be symptomatic of the court it comes from.

[This message was edited by JohnR on 09-20-07 at .]

How far can courts go in redrawing issues--especially when the parties have joined on an issue in their briefs? I would have thought the courts have to deal with the joined issue and can then go off on their own issue. But to ignore the joined issue to address their own, which I have seen,is not only make-work but unfair.

JAS

Well, without the record and the briefs, we're at a disadvantage. But the opinion makes it look like the parties were arguing about the presumption, but the Court said the case didn't involve the presumption. It is hard to tell from this distance.

But as the CCA noted in Pena, they cannot get too far from the briefed issues.

As a former briefing attorney and research assistant for the CCA, I can tell you it is much harder to draft an opinion responding to a terrible brief. You do find yourself trying to restate the issues into something comprehensible. And you do wonder whether you are saying something different (for better or worse) than was intended by the author if the brief.

Well JB, I hope the briefs have gotten better now that we use word processors instead of parchment and quills like you did back in the day.

Woah JohnR,

That is taking a hit at a whole lot of us. At least we are out of Huggies!

JAS

Aw now, at least he started in the parchment and quill era rather than with stone tablets like some I've known! Anyway, sitting in your old chair is catching me up fast!

Watch out, it will age you. All my grey hair grew there!!!

JAS

You have me confused with some other aged person. I have found the secret to retaining the youthful glow of a new proscutor: click here.

Trusting in his widely known reputation for being of scholarly intellect and for having a character that is beyond reproach, I reflexively clicked on Mr. Bradley's link to see what helped him stay so youthful.

I did not realize that he was watching pornography, nor did I realize that he was encouraging others to watch such. (Not that I am criticizing his taste in subject matter.... I'm not. To the contrary, he appears to have excellent taste. But that's a discussion for a different time.)

I, however, will now have to explain to the office of Court Administration why I have Mr. Bradley, a usually fine and upstanding individual (and elected official), to thank for encouraging me to watch this pornography (twice) using state resources. (Somehow, I don't think "But, Judge, I was Clueless that she would be without clothing." will work....

Thanks, anyway, for bringing a smile to my day.

It was a wonder our screens didn't blush and Websense kick-in. Ahhhh, for a nice cool swim.

JAS

Frankly, I saw it as a very educational video, explaining, with visual aids, the value of eating correctly and staying in shape. I'm not sure what anyone means by suggesting the message was anything but chaste.