Johnson v. Jones, 515 U.S. 304, 13 (1995)

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316

JOHNSON v. JONES

Opinion of the Court

II-A, argue against extending Mitchell to encompass orders of the kind before us.

For one thing, the issue here at stake—the existence, or nonexistence, of a triable issue of fact—is the kind of issue that trial judges, not appellate judges, confront almost daily. Institutionally speaking, appellate judges enjoy no comparative expertise in such matters. Cf. Pierce v. Underwood, 487 U. S. 552, 560-561 (1988); id., at 584 (White, J., concurring in part and dissenting in part) (noting that the "special expertise and experience of appellate courts" lies in "assessing the relative force of . . . applications of legal norms") (internal quotation marks omitted). And, to that extent, interlocutory appeals are less likely to bring important error-correcting benefits here than where purely legal matters are at issue, as in Mitchell. Cf. Richardson-Merrell, 472 U. S., at 434 (stating that the fact that "[m]ost pretrial orders [of the kind there at issue] are ultimately affirmed by appellate courts" militated against immediate appealability).

For another thing, questions about whether or not a record demonstrates a "genuine" issue of fact for trial, if appealable, can consume inordinate amounts of appellate time. Many constitutional tort cases, unlike the simple "we didn't do it" case before us, involve factual controversies about, for example, intent—controversies that, before trial, may seem nebulous. To resolve those controversies—to determine whether there is or is not a triable issue of fact about such a matter— may require reading a vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials. This fact means, compared with Mitchell, greater delay.

For a third thing, the close connection between this kind of issue and the factual matter that will likely surface at trial means that the appellate court, in the many instances in which it upholds a district court's decision denying summary judgment, may well be faced with approximately the same factual issue again, after trial, with just enough change

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