The Role and Rule of Courts

Moving beyond the preliminary inquiries addressed in the previous section, a larger set of inquiries arises. How will paratexts affect the roles of and relationship between trial and appellate courts? When any determinative evidence is electronically recorded, or the paratext serves of a record of the trial proceedings themselves, ¹⁹⁵ will the paratext undermine the historical divisions in the functions of the trial and appellate courts? Will trial and reviewing tribunals respond to the phenomenon of paratexts so as to serve the status quo, and thereby mitigate any such threat to their traditional roles?

These inquiries are necessarily speculative. While the law's current print­ based posture only allows us to extrapolate from what we already know of paratexts, it is clear that the new technology will profoundly test judicial institutions and practices. The lessons of history bolster this proposition. Just as legal institutions could not be insulated from the societal influence of scribal and typographic technologies, the advent of electronic technology will likely foster changes in contemporary law. ¹⁹⁶

Figuratively, the dichotomy between appellate and trial court functions reflects the dichotomy we have drawn between printed texts and paratexts. Traditionally, the trial court is considered the finder of fact, and in this domain, it is relatively supreme. By contrast, the appellate court, through the articulation and development of formal rules, is the ultimate arbiter of law. From the perspective of the appellate court, the trial court is the arena in which a fuller measure of context is appropriate. Conversely, the reviewing court, by its very rules and practices, generally closes itself off to much of the context presented to the trial court.

Legal rules and practices maintain this division of function between the two. Among other legal rules, the "plain error" doctrine of appellate reversal of lower court rulings, ¹⁹⁷ the "clearly erroneous" rule for appellate review of trial court findings of fact, ¹⁹⁸ and the "harmless error" rule ¹⁹⁹ and "verdict against the weight of the evidence" standard ²⁰⁰ for determining the legality of a judgment all serve in different ways to separate the domains of trier­of­fact and arbiter­of­law.

Furthermore, institutional efficiency values also maintain the functional division between lower and appellate courts. For example, the appellate system justifies its deference to factual findings and evidentiary rulings made by trial courts, partly by conceding that the finder­of­fact is better situated to evaluate both the demeanor of trial participants and the general environment of the proceedings (that is, the overall context of the trial). Moreover, were the appellate court to re­examine de novo the trial court's findings and rulings, the appellate dockets would be overwhelmed and justice delayed intolerably. In addition, respectful deference to the decisions of lower courts fosters collegial relationships and proficient court operations.