Correspondence from Chambers to Wong

    A(ro)
ME}4ORANDUM

TO:

FROM:

RE:

DATE:

James S. Liebman

Julie HalI

Findings of the Court

JuIy 26, 1984

I. Introduction

The trial court is the most important agency
of the judicial branch of the governme?-tr-Pre-
cisely because on it rests the resPonsibility
of aslertaining the facts- When a federal
trial judge sits without a jury, that respon-
sibilily is his- To ascertain the facts is
not a mechanical ac|u-l-/

This statement, taken from a L942 Second Circuit case,

elucidates the maxim well established in a majority of the

courts of appeals. Finding the facts and determining the con-

clusions of law is an indispensable part of the .judicial func-

ti-on which the trial judge should rlot abandcn to counsel.

In this section, I will address the role of the judge

pursuant to RuIe 52(a) as well as the propriety, effect and

reliabj.Iity of a trial court's opinion which adopts verbatim,

the prevailing party's findings of fact and conclusions of

Iaw. In addition, I will compare the varying views of the

circuits and provide suggestions to counsel opposing this

practice.

A common procedure utilized in finding the facts is for

the district court to announce its general d'ecision, reguest-

ing counsel for the prevailing party to submit proposed find-

ings and conclusions. Subsequently, the trial judge may adopt

L/ united states v. Fornesq , L25 !'.2d 928 (2d' Cj-r. L942)



those findings with minor revisions without giving any formal

opportunity to opposing counsel either to submit alternatives

or object to proposed findings before their adoption. The

Supreme Court in United States v. El Paso Natural Gas Co., 376

U.S. 651 (1964), vehemently criticized a trial judge's mechan-

ical adoption of the findings of the prevailing party. The

court quoted at length from a statement made by Judge J.

Skelly Wright:

I suggest to you strongly that you avoid- as
far ii you Possibly can simply signing what
some lawyer-puts under your nose. These law-
yers, and properly sor in their zeal and
ldvocacy and their enthusiasm are going-to-
state the case for their side in these find-
ings as strongly as they possibly can' When
these findings get to the courts of appeals
they won't be worth the paper they are
wrilten on as far as assisting the court of
appeals in determining why the judge deci-
ded the case.Z/

On June 5, 1984, District Court Judge Russell Clark

issued a lengthy lvlemorandum and Order of decision which

announced its ruling that defendants, suburban school dis-

tricts, had not contributed, either individually or in concert,

to the segregated school system in Kansas City, Missouri. The

Order concluded that interdistrict relief must be denied and
3/

granted the Rule 4I(b)-' motions filed by: Blue springs

2/ At 166, quoted from seminars for Newly Appointed united
States District Court Judges ( 1963 ) -

3/ The Advisory Committee Note to the 1948 Amendment of Rule
5'z(a) added the last sentence (findings of fact and conclu-
sions of law are unnecessary on decisions except aS pro-
vided in RuIe 41(b) to remove any doubt that findings are
necessary pursuant to Rule 41(b). This rule provides that

2-



Reorganized School District, Grandview Consolidated School

District, Hickman Mills Schoo1 District, Independence School

District, Lee's Summit Reorganized School District, Liberty

School District, North Kansas City School Districtr Park Hill

Reorganized School District and the Raytown Consolidated School

District.

In reaching this decision, Judge clark stated that the

court "reviwed the entire ,""ord.,!/ and has reached its judg-

ment after consideration of the live testimony, the demeanor,

believability and credibility of the witnesses, all of the

exhibits, the designated depositions and the interrogatory

answers filed by the plaintiffs." However, after a thorough

comparison of the proposed findings of fact submitted by coun-

sel for the defendants with the actual findings made by the

court, it is undisputed that the trial judge adopted almost

verbatim and in toto the propose{ findings submitted by the

1/ Continued

in a nonjury case the court malr if it sees fit' determine the
facts on a motion for dismissal, dt the close of the plain-
tiff's evidence. If the court grants dismissal at this point,
that rule expressly requires that findings be made as provided
in Rule 52(al. These findings wilt not be reversed on appeal
unless clearly erroneous. See also: 9 Wright & t"tiller, Fed-
eral Practice and Procedure, Civil S 237L (197I); Shull v.
Dain, Kalman & Quail, Inc., 56I F.2d L52,154 (8th Cir. L977),

:l :I8 F.2d
SA ( Otfr , 344 F. 2d 234 ( 8th
Cir. 19 ).

4/ The record consisted of highly disputed evidence, includ-
frrg testamentary as weII as documentary evidence, totalling
approximately 22,OOO Pages. In addition, there were over 2,100
eltiUits, teitimony from 140 witnesses, and 10,000 Pages of
depositions. As directed by Rule 52(a), the District Court
co-ntended it made specif ic, detailed findings of fact in sup-
port of its judgment with page citations to the 65-volume
transcript and 130 dePositions.

3-



5/
defendants.=' The differences in the two documents are minor

involving only a condensation of the proposed findings by the
6/

trial court.-' So far as the record reveals, counsel for

plaintiffs were not invited to comment uPon nor amend the Pro-

posed findings either before or after their submission to the
7/

court nor submit its own proposals.-' Counsel for plain-

tiffs contend that these findings are entitled to little or

no weight upon review by the appellate court as they: I) are

not supported by the evidence, and 2) fail to afford the appel-

late court a clear understanding of the trial court's decision.

II. Overview--A Trial CorJrt' I Yqrbatir! SdoPtiol of

a t'lore Critiqel

There is sufficient authority that the district court

may adopt without change those proposed findings of fact and

conclusidns of law which are carefully prepared and supported
8/

by evidence in the record.=' Although such a practice, in

2/ See Appendix for Section G which compares !h_e P-roPosed f ind-
fngs submiitea Uy counsel for the defendants with the findings
ad5pted by the tiiat court. The district court's findings of
taci vrere identical or substantially similar to the findings
proposed by the defendants.

g/ In its l"lemorandum and Order, the district court condensed
Efre 493 pages of defendants' proposed findings into 105 pages,
deleting-only redundant and extraneous materials.

Z/ According to 52(b), upon motion of a party made not later
Than 10 days after entry of judgment, the court may amend its
findings oi make additional findings and amend the judgment
accordingly. The motion may be made with a motion for a new
trial puisuant to Rule 59. However, this is not a requirement
for appellate review

g/ Roberts v . RosF r e]lpls . gggt Br-adlev. .v. Marvland- 9asga-ltv
eo.,ffi8rhlE. L961), wileie the court held that

4-



itself, constitutes neither a denial of constitutional rights
e/

nor reversible errorr=' a majority of the circuits have

expressed disaPProval of the practice

counsel's proposed findings verbatim,

of
L0/

mechanically adopting

and have cautioned

9/ Continued

there was no deprival of any constitutional right or anything
which warranted reversal of the case as the result of the
courtrs verbatim adoption of the prevailing party's factual
findings and conclusions of law when they were carefully drawn,
in detiil, and in a professional manner and they related spe-
cifically to the evidence in the record. Bcggri: .Pholg-Elec-
tronics Lorp. v. Enq1and, 58I F.2d 772,777 (9th Cir' 1978)'

Circuit similarly expressed that "the
trial court's adoption of proposed findings does not, by itself,
warrant reversal"l Pline v. Asgrow Seed CSr., 642-P.2d 64 (App.
rdaho 1982 ) ; chirds@ih, _Efgthe-rbogd-of BrS:-c:.
trical worker glli N.!.'n'E' v'-w99b
ffi9 ElUd 733,-Ti7 (7rh Cir. 1982). The Fourth Cir-
ffi- recent case, EEOC v. Federal Resqrvq Ben],< of Fich-
mond, 698 F.2d 633 (4th-ffi.--fgE3l;iEcognized that such a
@tice; although disapproved, does not require reversal.
6nly one case, lgishville, c. Q S.L.R. Co. v. Price, L48 S.w.
2l,g (191I), it6 t"6 findings
was itself reversible error. However, the judgment was not
reversed because exception had not been taken on that ground.
But see: The Ninth Ciicuit case, Northern Stevqdoringr.etc-..
v. Intern. Lo@oreman' s , 685 F.2A-:ZZ--9th Cir. 19 82) , which

sale adoption of one side's submitted
findings of fact and conclusions of law invites reversal.
Nonetheless, the court failed to give further insight into what
factors would actually warrant reversal. Similarly, the Tenth
circuit i,., ot"ro ,.. 14"". cit, v"ll=t. s"hnol pi=t=i.-t Not 51,
470 F. Supp ), citing G.l{. Leasing v'
United Stlles, 514 F.2d 935 (IQth Cir. L975), held that adop-
ffifaffiEngs prepared by counsel could lead to reversal .

But see, In re-l,as Colinas , 426 E .2d 1005 ( lst Cir. 1970 ) ( no
denial of due process ) .

2/ rd.

LA/ The Supreme Coult_in United -St9.!eF- v.. Fl. Paso-Nalural Gas
e5., 376 ulS. 651 (1964), aptfr-IAldl that "where f indings are
tEchanically adopted, the reviewing court will disregard them. "
Similarly, Lhe First, Second, Third, Fourth, Fifth, Eighth
Ninth and Tenth Circuits oppose this practice. See Section (B)
for a fuller discussion.

5-



the court of appeals to engage in a more careful analysis of
LL/

findings prepared in this manner.- However, left unanswered

is when, if ever, this practice is impermissible and specify-

ing what, if anything, the appellate courts can do when this

occurs.

Rule 52(g) F.R.C.P. is self-executing. The duty of mak-

ing findings of fact and determining conclusions of law rests
L2/

with the trial court.-' In an action tried without a jury,

Rule 52(a) requires the court to "find the facts specially

and state separately its conclusions of law" (emphasis

added ) .D/ In some circuits it is common practice for the

court to decide a case and then ask the prevailing party to
t4/

prepare the f indings.-' While the burden and resPonsibility

to make findings of fact and state conclusions of law are

Ll'/ EEOC v. Federal reserve Eank o{-BichBqn€l^sYPI?. at.-'(Ztr, 1 F.2d 622 (loth cir-
lggr), cert. deniffi3, 454 u-s. 859, 70 L-Ed-2d
L57i rlffiuch-walker corp., 

--F.?9- 
- ^(7th cir'

Lg77l , 581 T..2d 772,777
(9th cl ' -641 F'2d
1368 (9rh Cir. 198@, 454 U.S. 1143, 102 S.ct.
I0OI , 7L L.Ed.2d 294; Skrenskrr v. Dorsev, 574 F.2d I3I, L49
(3d Cir. 1978).

12/ 9 wright & I\'lil1er, S 2577 at 702 (I97I) -

L3/ FRCP 52(a). The rule by its very terms contemplates
EEat the findings should be "made" not "adopted" by the trial
judge.

L4/ Lindemann v. Fmerican Hgist and PerficF CSr-, 730 F.2d
Tdsz : l 5rs
F.2d 552 (5th Cir. fg , 425 F.2d 1005,

(lst Cir. 1970); see also:-Nordbye, Improvements in
ffiement of Findings of Fact and Conclusions of Law, 1F.R-D.
25,30 (1940); 9 Wright & Miller, s 2577 at 702 (1971).

6-



primarily upon the trial court, many courts recognize that the

prevailing party has "an obligation to assist a busy court in

performance of its duty under Rule 52(al .E/ Particularly in

complex cases involving scientific or technical issues, it has

been acknowledged that the proposed findings may indeed circum-
L6/

vent judicial error.-

Nonetheless, since findings of fact are not set aside

unless "clearly erroneousr'r Rule 52(a), at least in part, is

designed to aid the litigants and appellate court by affording

each a clear understanding of the ground or basis of the trial

court's decis ion.!/ Not only do these findings aid the

appellate court on review, but they are also an important fac-

tor in the proper apPlication of the doctrines of estoppel and

res judicata in future cases .L8/ Further, the seemingly most

important purpose served by Rule 52(a) is to evoke care on the
L9/

part of the trial judge in ascertaining the facts.- This

rationale is consistent with the duty imposed by the Rule.

Criticisms launched by the circuits opposing the mechan-

ical adoption of counsel's factfindings seem to have three

bases: l) preparation of findings in this manner usurps the
20/

judge's duty imposed by Rule 52(al-' in that these findings

fail to insure to the appellate court that the trial judge

considered alI the factual questions thoroughly and that each

finding is his impartial determination; 2) that, in addition,

such findings do not adequately inform the court on appeal or

the parties involved as to the bases of the trial judge's
. 2L/decision;-' and 3) f indings adopted in this manner are likely

7-



to convict the judge of error because they may be inadequate

to support his decision either due to their argumentative

nature or lack of substantiation in the record. (This criti-

cism accords with the intent of RuIe 52(a) found in the L946

Advisory Committee Notes which establish that "these findings

should represent the judge's g determination and not the

often argumentative statements of successful counsel. " The

Committee Notes reaffirm that Rule 52(a) was not intended to

delegate to the prevailing party the trial judge's primary

duty under the ru1e, namely, to "find the facts specially and

state separately its conclusions of law thereon.")

Such results can usually be avoided by following the better

practice of requesting proposed findings prior to the decision
22/

and making the request of counsel for both sides.-' This

widely accepted method allows the trial court to carefully

consider, weigh and determine the accuracy of the findings

submitted by counsel and to decide whether they are supported

by evidence in the record before him. In turn, this would

minimize the possib-ility of party preference and insure inde-

pendent judicial scrutinY.
23/

Regardless of which practice is adopted,-' the provisions

of RuIe 52 establish that findings of fact shall not be set
24/

aside unless "clearly erroneous. "- If the trial court has

not independently set out its findings, the reviewing court

may more readily be left with a definite and firm conviction
25/

that a mistake has been committed.-' Although the practice

of verbatim adoption of findings prepared by counsel is not
26/

commendable, such findings will not be summarily rejected--

8-



Nonetheless, to insure that the trial court has adequately

performed its judicial function, it is strongly suggested that

the adopted findings be supported by the evidence after a

critical scrutinization by the apPellate court.

G. FINDINGS BY THE COURT

A. Adoption of the Prevaili Part 's Findin S

of Fact and Conclusions of Law: View That
Practice Is Proper Where Findi s Scrutin zed
y Judge Before Sfgning

The sixth, seventh and D.c. circuits unanimously

assert that it is not improper for a judge to request counsel

for the prevailing party to prepare and present to him a state-
27/

ment of the f indings and conclusions of law.-' They conclude

that as long as the findings are supported by substantial evi-

dence, it makes no real difference which counsel submitted

them. This use of findings prepared by the prevailing party,

a procedure described by the Seventh Circuit aS of "consider-

able assistance" to the trial court is defended at length as

following a practical and wise custom to assist a busy court.

The desired effect is to expedite the judicial Process without

compromising the rights of the litigants.

These three circuits argue that, ultimately, the Proposed

findings should be considered merely an aid or assistance to

the court and solely within the court's discretion to adopt

and incorporate any or all of them in its opinion. In a recent

case, the seventh circuit declared that although as a "general

rule they do not endorse such a practice, they recognized that

it is within the discretion of the finder of fact so to do."

N.L.R.B. v Webb Ford, Inc., 589 F.2d 733 (1982). See also,

9-



Lockte corp. v. Fel-Pro, Inc., 657 F.2d 577 (7th Cir. I98I);

Scheller-Globe Corp. v. Milso Manufacturinq Co', 636 F'2d L77,

178 (7th Cir. 1980).

Most of the cases which have exPressly or impliedly

asserted this stance assume the trial judge thoroughly exam-

ined the proposed findings and affirmed they correctly reflect
28/

the facts as he found them to be.-' In the absence of indi-

cations to the contrary, appellate courts Presume that such

perusal has been performed, thereby precluding closer scrutiny

by the reviewing court. The underlying assumption being that

"the prevailing party's proposed findings should be given the
2e/

same weight as findings actually prepared by the court.-

Further, these circuits assert that complaints with regard

to the findings--that they were "ex parter " "SeIf-serving, "

or one-sided are remedied by Rule 52(b) of the Federal Rules

of Civil Procedure, which they interpret, contemplated ex

parte findings. As discussed in the Introduction, Rule 52(b)

gives the opposing party an opportunity to interpose objec-

tions or amendments within ten days after entry of judgment.

However, this argumentr ES well as the others, are disingenu-

ous. (See Section B, Page - )

The sixth, seventh and D.c. circuits' seemingly logical

remarks that findings proposed by the prevailing party and sub-

sequently adopted by the trial court should be given the same

weightr f€Iiabitity and effect as findings independently Pre-

pared by the trial judge, falls prey to the clear weight of

the circuits' case law with the intent and letter of RuIe 52(a)
30/

which hold to the contrarY.-

IO



B. Adoption of the Prevailine Party's Findinss
ii

A trial court's practice of announcing its decision

then requesting the prevailing party to prepare the findings

which the district court adopts almost word-for-word in sup-

port of its decision is disapproved in varying degrees by an

overwhelming majority of the circuits. (The present aPplica-

tion of the Rule in the Eighth Circuit is stressed in this

section. This selectivity is to illustrate the problems that

exist in all federal appellate courts.)

The reason for such disapproval is inherent in the plain

meaning of RuIe 52la), Fed.R.Civ.P., a fair compliance which

"requires the trial court to find the facts on every material

issue, including relevant subsidiary issues, and to rstate

separately' its conclusions of law with clarity' " De ltledina

v. Reinhardr, 685 F.2d 997, I0I1 (D.C. Cir. 1982). As the

court in Lilly v. Harris-Teeter Super lrlarkets, 720 F.2d 326,

336 (4th Cir. 1983), said in language quoted and approved in

EEOC v. Federal Reserve Bank of lichmond, 698'F.2d 533, at 640

(4thCir.1983),"thefindingsmustbebasedonsomethingmore

than a one-sided presentation of the evidencet ... [becausel

finding facts under RuIe 52(a) requires the exercise by an

impartial tribunal of its function of weighing and appraising

evidence offered, not by one party to the controversy alone,

but by both." See to the same effect: 1946 Advisory Committee

Notes.

II



It is assumed that "the clear words of the statute ought

to be given their ordinary meaning in accord with the manifest

intent of the legislature," Lewis v. U.S., 446 U.S. 55 (1980).

When viewed in tight of the common understanding of the phrase

"RuIe 52(a) requires the trial court to find the facts..."

coupled with the Advisory Committee comments make it patently

clear that the "court" is the sole arbiter of finding the

facts and determining conclusions of law. To read the Rule

otherwise is to contravene the drafter'S clear intent aS

expressed in the comment accompanying the RuIe.

While this application of RuIe 52(a) does not require the

trial court to make findings on all facts or address every

argument made during the proceedings, it does mean that the

reviewing court "deserves the assurance given by even-handed

consideration of evidence of both parties that the trial judge
32/

has settled all irreconcilable conf licts in the evidence.rr-

EEOC v. Federal Reserve Bqnk of Richmond, supra at 64I (4th

Cir. 1983), quoting Golf Citv, Inc. v. Sportinq Goods Co.,

Inc., 555 F.2d 426,435 (5th Cir. L977)i Askew v. United

States, 680 F.2d L2O6 (8th Cir. L982); Garner v. St. Louis

Southwestern Railwav Co., 676 F.2d L223, L278 (8th Cir. L982)i

and Tate v. Weyerhauser Co.,72L F.2d 598, 605 (8th Cir. 1983.

In addition, when the trial judge adopts the. proposed

findings of counsel, the courtts thought processes may be cast

in doubt; thereby leaving the reviewing court without a clear

understanding of the trial court's basis for decision. This

criticism v/as reconf irmed by the Third,,Y/ Eighthl/ 
^nd,35/Tenth- Circuitsr strong disapproval of a district court's

-L2



mechanical adoption of the proposed findings specifically

because they "fail to reveal the discerning line for the trial
36/

court's decision.-' Similarly, in a recent Sixth Circuit

case, Foulks v. Ohio Dept. of Rehab. a Correction, 713 f'.2d

LZL?, L233 (1983), the court remanded for more complete find-

ings as the findings of fact and conclusions of law failed to

provide the appellate court with a sufficient basis for re-
37/

view.- Although:

In most cases it will aPPear that many of the
findings proposed by one or the other of the
parties are fully supported by the evidence,
are directed to material matters and could
(sic) be adopted verbatim, and in some
cases the findings and conclusions proposed
by a gtarty will be so carefully and objec-
tively prepared that they could (sic) all
properly be adopted by the trial judge with-
out change,38/

does not guarantee that each word in the court'S opinion was
3e/

impartially and independently chosen- as required under Rule

52(a), resulting in an allegation that the weight and relia-

bifity of such findings is doubted. A11 of these considera-

tions prompted the Supreme Court in U.S. v. Crescent Amusement

Co., 323 U.S. 173, 184-85 (L944), to comment that the adoption

of findings (proposed by the prevailing party and subsequently

adopted by the trial judge) "leave much to be desired in light

of this function of the trial court under Rule 52(a)."

I,lost assuredly this is because "important evidence is likely

to be overlooked or inadequately considered when factual find-

ings are not the product of personal analysis and interpreta-

tion by the trial judger" Jones v. International Paper CSl., 720

F.2d 496 (8th Cir. 1983), citing James v. Stockman Valves &

13



Littinc co., 559 F.2d 310, 3I4 n. I (5th Cir. L977\, cert.

denied, 434 U.S. 1034, 98 S.Ct. '767, 54 L.Ed.2d 781 (1978).

The Eighth circuit's position on the use of proPosed

findings has undergone a transition in recent years' Early

Eighth circuit cases, although not directly addressing the

propriety of this practice, laid the foundation for determin-

ingthejudge,sfunctionpursuanttoRu1e52(a).Br@'

MiII Co., Inc. v. Irfqin, 13 4 F.2d, 337 , ( 8th Cir' 1943 )'

noted that "findings of fact should be a "clear and concise

statement, not a report or recapitulation of evidence from

which such facts may be found or inferred." In Skelly Oil v'

Holloway t L7L F.2d 670, 673 (8th Cir. 1948), citing Brown,

infra, the court confirmed that the rule is "intended to aid

the appellate court by giving a clear understanding of the

basis of the trial c9urt's decision" (emphasis added)'

However, in 1949, contrary to the plain language and ',

rationale of the Rule, this Circuit refused to disapProve of

the practice of having proposed findings and conclusions Pre-

pared by prevailing counsel without notice to the other side'

Miller v. Tillev, L78 F.2d 526,528 (8th Cir' 1949)' In this

case, the court, agreeing with the view of the sixth, seventh

and D.C. Circuits, noted that "the practice is common and con-

ventional in many jurisdictions" and that "whatever method Iis

usedl (sic), the trial judge assumes fulI resPonsibility for

the findings made or adoPted."

Ten years after the decision in Miller, this Circuit made

a gradual move to disapProve this practice4/ *ni.h developed

14



4L/
into "severe criticism" by L967.- In Bradley, counsel for

the defendants were requested to prepare its findings and

conclusions to assist the trial court. Except for two retyped

pages, the court's supporting memorandum adopted wholesale the

findings prepared by counsel. After reiterating the Purpose

of the rule, the court did not reject the findings. Quoting

from the Lg64 Supreme Court decision, United States- v. El Paso

Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. L044, 1047, L2

L.Ed.2d L2 (1964), the court concluded that such findings,
,,thougrh not the product of the workings of the district courtrs

mind, are formally his; they are not to be rejected out-of-

hand, and they will stand if supported by evidence.l'

The court held that the findings and conclusions were

supported by evidence aS they were "drawn carefully, in detail,

and in a professional manner, and they related specifically

to evidence in the recordr" at 423. As a result, the court

rejected allegations that this practice alone deprived either

party of any constitutional right or warranted reversal.

However, "if for some reason, counsel must be asked to

assist in the preparation of findings and conclusions," the

approach as suggested in Bradley, is to make this request of

both sides at or soon after the submission of the case and

prior to the decision. 5 lt'loore's Federal Practice (2d ed.

1966), par. 52.06[3], P. 2665. IdealIy, this enables the

court to select portions of the findings which coincide with

its concept of the case.

I5



sis

the

Subsequent Eighth Circuit cases have followed the analy-

in Bradley, paying close attention to the manner in which
42/

findings were made.-

tlost recently, in Jones v. International Paper Co' , 720

f.2d 496, 4gg (1983), citing Askew v. Unit9d States, 680 F'2d

L205, L2O9 (1982), the Eighth circuit reaffirmed its avid

disapproval of the "court placing its imprimatur on such find-

ings by wholly adopting them as the court's own"' While the

Eighth Circuit in Askew, dt L209, recognized that "submis-

sion by counsel of proposed findings is frequently a valuable

decisionmaking aid to the courtr " this court stressed that the

adequacy of such findings is placed in question for three rea-

sons. The overall result may be that "Iosing counsel may for-

feit his undeniable right to be assured that his position

has been thoroughly considered. Additionally, the independence

of th,e court,s thought processes may be cast in doubt and,

Iastly, the reviewing court may be left without a clear under-

standing of the trial courts basis for decision. " .Allied Van

Lines, Inc. v. small Business Administration, 667 F.2d 75L'

753 (8th Cir. 1982).

Despite these valid criticisms, the court again acknow-

ledged that the findings are formally the district judge's and

will stand if suPPorted by the evidence. It can be inferred

from the holding in Bradley and its progeny, that the Eighth

Circuit follows a broad interpretation of the RuIe subjecting

the findings to the "clearIy erroneous standard, regardless

of who prepares them." This view supports the primary and

16



basic test of the adequacy of findings. Note: Counsel rely-

ing on the Eighth Circuit's view of this procedure, will make

the strongest argument by establishing that the findings are

not supported by the evidence. In the Eighth Circuit the

practice of adopting the proposed findings verbatim, by itself,

does not warrant reversal, and in very few cases has even war-

ranted a remand. See: Tate v. Weverhauser, 723 F.2d 598, 605

(8th Cir. 1983). (ln this Title VII action, although the Dis-

trict Court .made no specif ic f inding regarding one inciden.t

highlighting appellant's disparate treatment, reversal was not

warranted. See also, Garner v. St. Louis Southwestern Railway

Co., 676 F.2d L223, 1228 (8th Cir. 1982).
43/

Similarly, the Third Circuit-' while strongly disapprov-

ing this practice, permits the use of findings drafted by

counsel on a conditional basis. In Roberts v. Ross, S.EB,
the court agreed with the better practice of inviting counsel

for both parties to submit proposed findings of fact and con-

clusions of law. However, there was one caveat. Only if the

trial court solicits and considers the findings from both

sides prior to its decision on the merits will the Third Cir-

cuit permit such a practice.

Otherwise "findings and conclusions prepared by a party

and adopted by the trial judge without change are likely to

be looked at by the appellate court more narrowly and given

Iess weight on review than if they are the work product of

the judge himself. " Roberts v. Ross, supra at 751. Confirming

l7



this view, Judge Albert B. Mans, speaking for the Third Cir-

that Rule 52(a)cuit in Roberts v. Ross, 99PI3, recognized

requires the trial judge to formulate and articulate his

findings of fact and conclusions of law in the course of his

decision-making Process .
44/

consistent with this observation is the Fifth- and

45/
Tenth- circuit's view that the mechanical adoption of sub-

mitted findings of fact and conclusions of 1aw, though not

proscribed by either circuit, is an abandonment of the duty

imposed by RuIe 52, because they may fail to disclose the

courtrs rationale for its decision. (This coincides with the

Eighth Circuit's criticism of this procedure.) In fact, both

circuits require a critical scrutiny of the adopted findings

by the appellate court to insure that the trial court has

adequately performed its judicial function. The inadequacy

of the verbatim adoption of defendant's findings was most

apparent in Ramey, ]3.;[53, wherein complex factual allegations

and legal theories were dismissed in a conclusory manner

resulting in remand for new, more detailed findings.

The wholesale adoption of proposed findings, sanctioned

in appropriate cases by these two circuits, is "vehemently
46/

opposed,' by the Second Circuit-' and selectively approved in
47/

"highly-technical" and "comp1ex" cases in the First-' and a
48/Ninth-' Circuits. The First and Ninth Circuits seemingly

offer the most logical explanation for the verbatim adoption

of proposed findings. While the First Circuit in In re Las

colinas, restricted the mechanical adoption of proposed find-

ings to "extraordinary casesr" the Tenth Circuit in Ramey,

18



infra, distinguished between the technical complexity of a

case and complexity through sheer volume. In Ramey, even a

trial lasting six weeks producing an immense record of fifty-

five volumes, including thousands of pages of transcript did

not render them (sic) inherently complex to justify verbatim

adoption, dt 468. See also: Photo Elec. Corp. v. England,

58I F.2d 772,777 (9th Cir. 1978); Kaspar Wire Works, Inc' v'

Lees Ens'r & Mach., Inc., 575 F.2d 530, 543 (5th Cir. 1978);

nees v. Elkhart Weldi , 447 f.2d 517,

520 (7th Cir. 1971); In re Las Colinas, infra, at 1009'

Although cognizant of the "clearly erroneous standard"

of Rule 52(a), the Court of Appeals in the Fourth Circuit

case, Cuthbertson v. Biqqers Brothers, Inc', F. 2d

(1983) (on writ of certiorari), believed it should decide the

case de novo, solely because the district court had adopted

findings in essentially the form proposed by plaintiff's coun-

sel. Based on the proposed findings submitted in this Title

VII action, the district court entered judgment enjoining the

defendant from practicing racial discrimination against the

four-named emPloyees.

on appeal, Judge wj.dener repeated the Fourth circuit's

admonition of the practice of adopting the prevailing party's

proposed findings of fact and conclusions of law and concluded

that the use of the practice, itself, justified remanding the

case. The court further directed the district court to pre-

pare its own findings at the conclusion of the remand proceed-

ings.

19



To suPPort

ANCE, 152 P.2d,

this conclusion, the court relied on THE SEVER-

915, 9I8 (4th Cir.), cert. denied, 328 U'S' 853

(1945), thereby, according the findings "less weight and dig-

nity lthan] ... the unfettered and independent judgment of

the trial judge."

The Fourth Circuit in a series of decisions ,9/ n^= con-

demned the verbatim adoption of prevailing party's findings'

See: tliller v. Mercv Hospital, Inc', 720 F'2d 355' 359 (4th

Cir.1983);Holsevv.Armour,6S3F'2d864,855(4thCir'

L9821; EEOC V. Federal Reserve Bank of Richmond, 698 F-2d I49

(4thCir.1983);LiIIvv.Harris-TeeterSuperMarket'720F'2d

326 (4th Cir. 1983).

In light of the numerous court of appeals which disavow

the mechanical adoption of findings prepared by counsel, none

gives guidance as to how such findings should be treated on

50 / 5t/
appeal. WhiIe the Eighth--' and Fif th-' circuits aPPly the

"clearly erroneous" standard, regardless of how the findings
52/ 53/ .54/

were prepared, the Firstr-' Tenth-' and Fourth- Circuits

wiIl remand a case for additional findings. Four circuits

apply a vascillating standard of review when this practice is

util Lzed.. The First Circuit makes a "most searching examina-

tion" for error and directing the reviewing courts in close

cases to feel more justified in remanding. In the Third cir-

cuit these findings are "Iooked at more narrowly and given
55/ 56/

less weight on appealr" while the Fifth-' and Ninth-' cir-

cuits subject them to "special scrutiny' " Note: In a L979

case, the Seventh Circuit, although not disapproving of the

practice, stated it "would critically review the contested

-20



findings." Such a stance could

lateral apProval of the Practice

this Circuit.

indicate a shift from a uni-

to a wavering skePticism bY

The confusion and division among the

from the conflicting implications of

circuits
Crescent

may stem in

AmusementPart

and El Paso Natural Gas, supra.

The former case held that such findings "leave much to

be desired in light of the function of the trial courtrrr yet

insisted that "nonetheless they are the findings of the Dis-

trict Court and must stand or fall depending on whether

they are supported by evidence." 323 U.S. at 184-85- The

latter decision (citing crescent Amusement) I denounced the

verbatim adoption of proposed findings as "being less helpful

to the appellate court as they fail to reveal the discerning

line for decision of the basic issue in the c&s€lr'and not the

working of the district court's mind, Y€t affirm that "they

are formally his and therefore not to be rejected out of

hand." 376 U.S. at 656-

In light of the apparent inconsistencies of Crescent Amuse-

men! and EI Paso Natural gas, a Close reading reveals that these

two cases are reconcilable. EI Paso, citing Crescent, confirms

that the ultimate decision to accept or reject the findings is

whether they are supported by the evidence. However, both

cases use language from united states v. Forness to highlight

that these findings should ultimately reflect the judge's own

determination. Nonetheless, the Supreme Court has consistently

followed the comments of the Advisory committee with respect

to admonishing the practice of adopting the findings prepared

2L



by prevailing counsel. In effect, the supreme court in its

infinite wisdom discourages the mechanical adoption of find-

ings, but yet acknowledges that the trial judge is ultimately

responsible for the findings made. Seemingly, unless counsel

opposing such a practice "overcomes the heavy burden of show-
57/

ing that the findings of fact are clearly erroneousr"- they

should stand as adoPted-

Note to Counsel: Counsel should make note of the fact
tffi in El Paso consisted largely of undis-
puieaevidence.rfffirdconSistedofhi9h1ydis-
|,.,t.a evidence, it is speculative.whether the Supreme
Court would have had sulh a cavalier attitude towards
themechanicaladoptionoffindingspreparedbythe
pi.""iIing party. Counsel opposing this practice
-could mak6 i mulfr stronger case if he can distinguish
the record in EI Paso with the case at bar'

Neverthelessr llo court regards a trial courtrs procedure

of announcing its decision first, and then asking only the

prevailing party to submit written findings for their adop-

tionr &s reversible error. Nor does it mean that the "clearly

erroneous,, rule will not be aPptied. However, what it does

mean is that this procedure can be systematically challenged

in hopes of securing a remand.

To accomplish this result, counsel opposing the wholesale

adoption of prevailing party's findings should make the fol-

lowing arguments.

22



4, bnL

n uL',
?.,6'1

I
-c.

the Rule and Unequivocally Warrants Remand'

An appropriate review by the court of Appeals is not Pos-

sible if due to the District court's failure to make adequate
58/

f indings,-' the reviewing court is left to speculate what the

District court believed the facts to be or question the basis

for its judgment. under such circumstances, regardless of the

exercise of a 52(b) motion, the Court of Appeals must remand

the case and direct the l0wer court to make additional find-

ings. (See' Anthan v. Professional Air Traffic Controller

Organization, 672 F.2d,706 (8th Cir. 1982), wherein a trial

court's findings that plaintiff incurred medical treatment,

without citing a dollar figure, was inadequate to afford the

appellate court an opportunity to review an award of compensa-

tory damages thereby warranting remand for itemization in com-

pliance with Rule 52(a). )

Initially, counsel must establish that the court did

indeed adopt the prevailing counsel's findings verbatim paying

close attention to whether the wording of the judge's opinion

is a carbon copy of the prevailing party's findings, or made

with only a few inconsequential changes. Second, counsel

should make note of the relative number of findings so adopted-

(That prerequisite is obviously met j-n this case because " " )

Note: In response to this allegation, any evidence that the

trial judge gave careful consideration to the party prepared

findings, such as where he deleted or changed some of the

-23



findings t ot made additional findings, will redound to the

benefit of the prevailing party. However, even when a district

court took "obvious care in editorial revisions to the proposed

findings, and added a critical finding on the ultimate motiva-

tional issue" in a Title VII case, the appellate court still

admonished this practice. See: MiIler v. Mercy Hospital, Inc.,

720 F.2d 356, 369 (4th Cir. 1983).

Additionally, counsel should highlight the method used by

the trial judge in preparing the findings. As commented in

both Lilly v. Harris Teeter (10th Cir. 1983 at Section G) and

Bradlev v. Marvland Casualtv Co., .glrPr,3, the better Practice

is to request findings from both parties prior to announcing

the decision of the trial court. Note: In Lilly, the District

Court did not fail to meet its obligation under Rule 52(a) to

find the facts specially and state separately its conclusions of

law when it adopted essentially verbatim proposed findings sub-

mitted by counsel. In this case, the district Court (1) twice

specifically requested that defense counsel submit comments orlr

and objections tor. the submitted findings i (2) reversed its

initial findings as to one intervenor; and (3) check cited evi-

dence in proposed findings against the actual transcript,

approving each paragraph of findings one by one. (If such a

thorough examination of the factfindings is not performed

before adoption by the district court, then it can be presumed

that the judge adopted the findings without giving them care-

ful scrutiny. In addition, Rule 52(a) was amended in 1983 to

lighten the burden on the trial court in preparing findings in

24



nonjury cases. This amendment permits the judge to make find-

ings orally as required in nonjury cases. This in effect would

reduce the need for verbatim adoption of findings by the trial

judge. However, it is not clear where the judge requests

findings from both parties prior to announcing his decision and

then adopts the findings of one, if the losing party is estopped

from objecting to the practice because he participated by sub-

mitting findings. In resPonse, counsel should contend that

adoption rather than submission of findings is at issue, there-

fore estoppel in such a situation would be misplaced.

2. Remind the aPpellate court of the duty imposed on the

trial.judge pursuant to Rule 52(a) and argue that this duty

would be usurped by this practice. (See: Section G(B) for the

circuits which espouse this view. ) This argument could be but-

tressed by reference to the Advisory committee Notes of 1946

as weII as to the Model Code of Judicial Responsibility, Canon

2, which explicitly states that 'jthe independence and integrity

of the judiciary is the touchstone of the democratic process. "

(This argument is especially reinforced in the instant case

where a RuIe 41(b) motion was granted. Remand is required

where the trial court fails to make findings to support its

dismissal. The impetus for a remand is reinforced since the

Court of Appeals is restricted from reviewing the evidence de

novo or make its own findings. Finnev v. Arkansas Board of

Correction, 505 F.2d I94 (8th Cir. L974)'

A 19BO district court case in l4assachusetts contended that

Rule 52(a) requires courts to make far more detailed findings

-25



of fact than a jury is required to make when the case is sub-

mitted to it under RuIe 4I. See: Banerqee v. Board of Trustees,

4g5 F. SupP. 1I48 (4th Cir. 1980)' t?l

3. As an aside to Recommendation # 2 above, counsel should

also contend that when the wording of the judge's opinion fol-

lows counsel's findings verbatim, "the independence of the

court's thought process may be case in doubt-" In re Las

Colinas, supra. This is an obvious argument which should not

be lightly disregarded.

4.Asacorollaryto#3above,counselshouldalso

assert that "factfinding is the basic resPonsibility of the

district court," PuIlman Standard v. swint, 456 U.S. 273,

2g2, 72 L.Ed. 2d 66, I02 S.Ct. I78I (1983). Therefore'

adopting verbatim the findings of the prevailing party is

tantamount to no findings being made by the district court,.

thereby justifying remand with directions for further findings.

Although no case has actually asserted this view, this argument

may at least be one factor to prompt strict appellate review'

see: Roberts v. Rosq, 344 F.2d at 752, to support this line

of argument.

5. Acknowledge, that most, if not atl courts' in the

interests of judicial economy, can request the assistance of

counsel in preparing the findings. Nonetheless, sheer volume

does not justify the verbatim adoption of the prevailing partyrs

f actf indings . ( For example, 9E: Ramey, supra, a Tenth circui t

case which produced over 55 volumes and thousands of pages of

26



trial transcript, held that a voluminous record did not justify

verbatim adopltion of findings. the record in the instant case

is of comparable length and similarly does not warrant the

mechanical adoption of the findings -

6. Demonstrate any improprieties in the findings so pre-

pared which would have been changed by a judge who gave them

careful consideration. (This is probably counsel's strongest

argument in favor of remand. ) See: Cuthbertson v. Biqqer

Bros., Supra, wherein the. appellate court after giving careful

scrutiny and comparing the findings to the record concluded

that if the judge had given the findings his independent scru-

tiny, a different finding would have been made- (The argument

would proceed as follows: Whether the district court would have

come to exactly the same findings if opposing counsel had the

opportunity to introduce evidence is sPeculative. If plain-

tiff's counsel had been given the opportunity to demonstrate

the rationality of contrary findings, the district court would

have been forced to make a more critical examination of the

record. Therefore, the findings should be remanded. )

7. In the alternative, counsel should supplement the

allegation of error on ground # 6 with an allegation and argu-

ment that the findings are not supported by the evidence. If

counsel loses the former issue on appeal, there is Possible

relief under this recommendation.

8. A majority of the circuits posit that the wholesale

adoption of the prevailing party's factfindings warrants closer

scrutiny by the appellate court. See: Section G(B). This

being the present state of the law, then if an appeal is involved,

27



much of the time saved to the trial judge, bY having the pre-

vailing party assist the court by preparing the findings, ItrdY

be lost at the aPPellate level. The appellate judges who have

not had the benefit of hearing testimony in the case are forced

to scrutiny the record de novo to ascertain whether the

facts are supported by the evidence. Note: De novo review was

permissible for just this reason in the Fourth Circuit case:

Cuthbertson v. Biqqer Bros., sqpra.

This argument.on f irst f lush, InBY. Seem to undermine the

necessity of careful scrutiny by the appellate court. Never-

thelessr op closer examination, this exacerbates the extension

of precious judicial time and energy required when the trial

judge adopts the victorious party's findings, thereby under-

mining the acceptance of this method of preparing findings.

9. . The making of findings is undisputedly a judicial

function which inherently conflicts with the adversarial Pro-

cess. "proposed findings are adversarial documents designed

to present all (the attorney's) contentions in the light most

favorable to their clients." Therefore, wholesale adoption

of such proposals by the court cannot generally convert them

into a form "reflecting impartiality and restrained, objective

judicial attitude. " Industrial Bldq. t'laterials, Inc - v - Inter-

ghemical Corp., 437 F.2d 1336, 1340 n. 3 (9th Cir. 1971). See

also: AdvisorY Committee Notes.

10. Further, counsel requested to submit findings does so

in a vacuum. The prevaililg party must articulate and write

out findings of fact and conclusions of law without any knowledge

28



of the factfinder's reasoning Process. It is reasonable to

believe that submission of facts in this manner would give

the prevailing party an opportunity to relitigate his case.

This argument was advanced in the Fourth Circuit case, lliller

v. l,lercv Hospital , Inc. , supra.

It. Lastly, counsel should address the assumption that

Rule 52(b) provides sufficient relief for the dissatisfied

party to amend the findings so adopted. This is a faulty

argument. As noted in EEOC v. Federal reserve Co ' , -ggpg,,

"(A)t this point the judge's decision, not the adversary's

proposed findings and conclusions, must be challenged, and

any fair opPortunity to influence the decisional Process in

the trial court in practical terms has been lostr" at 359.

To reinforce the futility of the Process of filing a 52(b)

motion, counsel should note that post-finding objections or

motions to amend may be made, dlthough they are not required

in order to challenge findings on appeal.

A combination of these arguments should be attempted to

induce the appellate court to at least more carefully review

the trial court's findings of fact. HopefulIy, these sug-

gestions will warrant remand.

29



IFootnotes--beginning P. 7 -)

L5/ schwerman truckinq 99..v. gaftlgnd 9leemship-9g. , 4?.5-

FfZa Scheller-Globe v. !4ilsco Mfq -

Co., 636 Il.2d L77, 178 (7th Cir. 1980). But see: In re
ffii.nas, Inc. , 426 F.2d IO05 (lst Cir. Lg67),- cPrt.lFffied,
ZT'E, ffi08, wherein the court acknowledged that the Prac-
tice of inviting counsel to submit proposed findings of fact
and conclusions of law is a valuable aid to decisionmakitg,
however, recognized that the court's findings must ultimately
represent the findings' own determination.

All of these cases refer to the practice of requesting
findingsr ES a "practical and wise custom" of the adjudicatgfy
systeml See also, Bradley v. Marylang.Casualty C_o. , 382 F.2d
A1S (8th ffi7)@ this custom, but disap-
proves of the trlal court's verbatim adoption of-the prevail-
ing party's findings of fact and conclusions of law. }ccgrd:
Caion S of the Code of Judicial Conduct states that a "judge
should dispose promptly of the business of the court." Expli-
cit in the Commentary accomPanying Canon 5 is the desire to
permit assistance from lawyers, court officials and litigants
to dispose promptly of the court'S business. Even a narros,
interpietation of Canon 5 would permit requests for findings
of fait and conclusions of law. However, whether under this
Canon the wolesale adoption of a prevailing party's findings
would expedite the disposition of a case is speculative.

L6/ This is acceptable in many comp!91 patgn!_cases- 9-:.
ffivssonen v. Bendix Corpr, 342 F.2d 53I, 532 (Ist Cir. 1965),

, 382 U.S. 847, 15 L.Ed-2d 86, a com-
FiGilinfringementcaSe,whereinthecourtofappeaIs
lctcnowtedged that in a highty technical and complicated case,
the trial court was justified in relying uPon counsel for
technical findings. See also: In re Las 9olinqg, Ing., !?9
F.2d lOO5, 1009 (1st eIr. T970), gert- denied, 405 U.S. L067,
92 s.ct. 1502, 3I L.Ed.2d 797 (L972), here the court decided
that the practice of adopting proposed findings verbatim
"should bL Iimited to extraordinary cases where subject matter
is so highly technical it requires expertise which the court
does not possess. "

L7/ A leading authority on federal practice stated that
EeaIIy f indings of fact should be c1ear, specif ic and com-
plete. 9 Wright & Miller, Federal Practice and Procedure
S 2579 at 7I1 (I97I). See also: U.S. v. t'Ierz, 376 U.S. L92
irqse),inwhichtheSupremecourt?m@thisfunction.
According to the Second Circuit case, Lora v. Bd..of Educ. of
the Citv of N.Y., 623 F.2d 248, 25L (1980), a "trial court
ffit to the task of sifting through the entire
record below to determine what facts support what conclu-
sions." Findings of fact should be explicit enough to give
the appellate court a clear understanding of the basis of the
trial Lourt's decision. See also: Snyder v. United StateS,
674 t.2d 1359 (10th Cir. 1980).

1-



L8/ Advisory Committee Note to 1948 amendment of Rule 52(a);
-i.R.t. at 'qlt, citing Nordbye, rmprovements in Statement of
rirrairrg" of Fact and Conclusions of Law, L940, 1F.R.D. 25,
26-27; Wattleton v. Intern. Brotherhood of Boiler Makers, etc.,
686 F.2d 586,
1199, _ U.S. 

-, 

75 L.Ed-2d 442.

Ig/ United States v. Birnbach, 400 F.2d 378 (8th Cir. 1968).
EEtor Ross, 344 F'2d 747 (3d
Cir.I955),the''purposeoftffingto.findingsis
to require the judge- to formulate and articulate findings and
conclrisions in the course of his consideration and determina-
tion of the case and as part of his decision-making Process,
so that he, himself, may be satisfied that he has dealt fully
and properly with all i-ssues in the case before he decided it
and io tfrat the parties involved and the reviewing court may

be fully informei as to the bases of the decision when it is
made.tt

v. t'tarvrffi. ,_-382 F.2d 4L5t (8th cir. L967)i
oao F.2d L206, Lm (8th Cir. 1982);

Paper Qo., 720 F.2d 496 (8th Cir' 1983)
a judge should uPhold the

G@V and independence of the judiciary. Adopting the
prop5sed- findings 6f the prevailing palty compromises his
indipendence and compliance with Rule 52(a) '

20/ United States v. El Paso Natural Gas Co., 376 U.S. 551'(Tgea@, 344 F.zd 747 (3d eii. 1955); BradIeY

2t/ AlIied Van Lines, Inc. v. SmaII Business Administration,
667 F. , 753 ( ffiitions omitted);
Stanlev v. Henderson, 597 F.2d 65I ($th Cir. L979), "findings

afford the reviewing court "clear under-
standin{ of basis oi trial court's decision"; CrgsE v. PCEIey,
267 F.2a 824 (8th Cir. 1959); united statqs J- EI Paso, ?76
u.s. 651 (Ig54), took notice tEat wFere findings are mechan-
ically adopted and fail to reveal the line for decision of
the bisic issue of the case, the reviewing court will disre-
gard them.

22/ 5 A.J. Moore's Federal Practice (2d ed. 1955), par. 52.06
T3'1 , p. 2665. lelso see section G(B) ]. Accord: Bradl-9v v.
llaivlind casualiv co., supra; -lobEr!=,y.= Rg?", :gBI?, vi?oli - -t ffit6T-7TT5Lh cir- 1e81li Etl,l'ittv
ffix Druqr sales, rnc. , 460 F.2d 1096 (5th cir.

s followed bY trial courts
in adopting a prevailing plrty's findings. One practice includes
having p.r[ies submit finaingi, the ludge subsequently marking
each paiagraph of both sets iitfrer "found" or "refused"; (2)
beforl *atiirr! an oral decision, having both parties_submit f ind-
ings and tfren adopting the findings of one party; !3) making
an oral decision ior one party and having him submit findings

t1



22/ Continued

and (4) making an oral decision for one party, giving the rea-
sons thereforl ana naving that party submit findings in accord-
ance therewith. Note: method number three most closely aPprox-
imates tfre proced[Fused in the instant ca99' ^. 

LiI]v v' -llarris:
Teeter supermarket, 720 F.2d 326 (4th Cir. 1983), gives the most
common sense [i.a-.".. for courts to follow in adopting ProPosed
findings. tnit decision suggested that "prior -to reaching and
i""""n6i-ng any decision, tha trial court should request pro-
;;a;a ri.n6ingi from both parties as to alt of the disputed
?actual and Lega1 issues, with reference to the record support-
ing the fact t6qrr""ted and then Prepare its decision based upon
it; independent'analysis of the proposea findings and the evi-
dence of record," at 332. Ideally, greater effiCiency, more
accurate findings and fewer appeals would result.

23/ See footnote 22, supra.

24/ F.R.C.P. 52(a), cited in united Elates v. El Paso co. 'fri'"] ';;k;;-". united states, z ) ;

ME r a, rnc' , 682 F'2d 530 (Sth Cir'
, !upT?l-iL '; .za ro4o, (5th

cirJiiffiA*. deqre4, m 34 L.Ed.2d L28, 93

;:ar .-1zi'.' Tffi;i ffithilourt waited fourteen months after
the conclusion of trial to issue its ruling and_the_findings
*"." adopted, almost verbatim, the court applied RuIe 52(a)'

25/ Askew v. Unite4 gtaFes, 58-0- I.2q 1206, L209 (8th Cir'
Lg82), "ititg 

, 331^U:S ' 364' 395
(1948)' see a '^-2-60^F'2d 

747'
750 (3d Cir. 1958), 875,359 U'S' 966'
3 L.Ed.2d r:4; and'nEffilv. =speei 

clgcE go' '.457 F '2d
ioao , Lo42 (Sin Ci.r , 93 S'Ct ' L25,
u.s. 876, 34 L.Ed.2d L28.

26/U.S.v.EIPasoNatuTaI-GasCo.,Sgpra.at.1047,citing
U.S. v. Cres ,Eund that although f ind-
i re-lGTthe product -of. the district
court's mind, they cannot be rejected out of hand, but will only
stand if supporteii Uy evidence. See also: .RameY-9ons!{. -99.,
inc. v. apalire t'riUe-of uescaleroEservation, 6L5 F-2d 454
(lOth Cir. 1
Lrd., 593 P.2d 375, 382 (1979) -

8th Circuit

Bradlev v. tlarvland Casualtv Co. , 382
Cir. L967 )

Miller v. TilIeY, L78 F.2d 526, 528 (

, 720
ffi

F.2d 415, 423 ( 8rh

8th Cir. 1949)
F.2d 496, 499 ( 8th

lll



26/ Continued

5th Circuit

In re Westec CorP.,ffiir
434 F.2d I95
& Ref. co.,

(5th Cir. I970)
338 F.2d 502, 5L2
u.s. 926, 14 L.Ed.2d38r

ffi'-1f36il
6th Circuit

O'Learv v. Liqqet!-Prug-9or, _I59-I.29^656, 667,
.s- 273, 90 L.Ed'2d 4

7th Circuit

ffi denied, 384 u-s. 9r4-

30/ See: I"lachlett Lqboratqries, Inc. v. TechnY Indgstriss, 
.

66s F- Tgfi verbatim
the prevailing party's findings of-fact and conclusions of law.
Consistent wi[n-tfr"-Fourth Ciicuit's view of this practice (to

cert.T-

schnell v. Allbriqht-Nell cq., 348 F.2d 444t 446, cert.
s- 934, 15 L-Ed-2d 851

9th Circuit

U.S. v. ffaas e navnie Corp- , 577 F.2d 558, 578 (9th

27/ Halkins v. Helms, 598 F.2d 1, 8 (D.C. Cir. 1970)- since
EEe ffidum in this case refrected only tentative
conclusions of the court exPressed during a status hearing,
there was no reason to suspect the case did not receive full
and careful consideration 6y the district court. See,alsg:
HilI A Ranqe sonqs, Inc. J{. Fred Rose Music, Inc., 570 F.2d
558 ( 5th cir.
iooper terminal Co. , 2L7 ffih Cir. 1954).

28/ AIl three circuits, as an extrapolation of this premise,
n"i. ifr"t even though the findings may have been prepared by
counsel for the vicLorious party, the trial court becomes
solely resPonsible for theii coirection. This analysis is
impli6afy 3upported by the Supreme Court's holding in El
paso, ggpra., ifr"t "fi-ndings-fiep"rea in this manner, w[l
not Ue@cted out of hand." However, this is in error as
ifr" juageTattorney never stand in a (quasi) agency relation-
ship.

29/ Schwerman{r Trucking Co- v. Gartlan@l -?uP-ra'atL47' To ufind-
ir,g" prepared by counsel ana adopted-verEatim by the trial
ju6ge-o=i,tp the function of the trial court. Nonetheless,
[fr"i" findings are considered formally his and will stand if
supported by the evidence on recol!. E"" also: Schnell v.
aii6iiqr,t-Ni,ri co. , 349 q.zq ay !7tl-rys),@"d,

11I



30/ Continued

be discussed in Part B), the apPellate court decided that when
the district court merely adopts wholesale, the findings and
conclusions of the prevailing party, "they may therefore be
more critically examined, " at 797 . The Court of Appeals in
reviewing the lrial court's findings held that the district
court abrised its discretion by granting a preliminary injunc-
tion, partly based on the manner in which they made their find-
ings. -See llso: Garcia v. Rush-Presbyterian:9!r.Lukg's Yed-
icil center, 500 rffi2o (7th 9iT:1980); Pltg!?restGffitomat corp., 996 F.2d 704, 73L (7th cir' L979) ,

gL7, ro0 s.ct. L278, 53 L.Ed-2d 501.

3L/ To reiterate F.R.C.P. 52(a) unambiguously requires the
6urt to f ind the facts specially and state separately its
conclusions of law.

32/ Allied Van Lineg, IIlg:_y. s$3lt Bgsiness_Ad$inisFration,
f6'S Falcon EquiPment 9orPt v.
Courtesv Lincoln Mercurv, _536 F.2d 806, 80B (8th Cir. 1979).

| ?97 F.2d 551, 554 (8th Cir.
L979)i Unit iglr Co-, 439 F.2d 670, 673 (8th
Cir. f9 , L7]- F.2d 670, 573 (8th
Cir. 1948 ) ; ermarkets , 720 F.2d 326,
335 (4th Cir cuit caases. Accord:
Lg46 Advisory Committee Note to RuIe 52(a) states that "the
judge need oirfy make brief, definite, pertinent findings and
6o.ritusions upon the contested matter . . . . " United Etates v.
Forness, suprl; United S!?tes v. _Crescen! ATuse$gBt_Cg.r -E9Pra.ffiT5o, , 134 F' 2d 337
(8th Cir. 1943).

33/ Roberts v. Roilsr supra at 75I.

34/ Jones v. Intern. Paper 90. | 720 F.2d 496, 498 (8th Cir.
r9.eg , 680 F. 2d 1026 ( 8th
cir. Lgg2) i Filc@p..v. courtesy Lincorn l"Iercury,
536 F.2d at ffi19), citing Christensen v. Great
Plains Gas Co., 418 F.2d 995, 1000 (8tn Cir. 1959).

35/ Ramev Const. Co., Inc. v. Apache Tribe, Etc., 6L6 F.2d
464 ( 10th Cir. 1980 ) .

36/ Id., at 456 (10th Cir. 1980 ) - See 3_1-so:- -Sw?!P-on=l 
Yoyl!r;.

leIrnc. v. Seaqraye. Corp. , 551 F. ?d -L7L, I73 ( 8th-giT. L977 )

not concluding that the findings
were "clearly erroneousr " nevertheless remanded the case to
the district court for more detailed analysis.

37/ Fau1k v. Ohio Dept, of- Bgfrebilitaliolr e CorrPction, 7!3
F.2d olved an emPloYment dis-
crimination case under Civil Rights Act of 1865.

38/ Roberts v. RossT s.uPtar at 75? (3d_Cir. 1955), as elab-
ot"t ' 505 F'2d
Lg4, 2L2 n@974).

V



39/ Note to counsel: Such an argument is buttressed when the
triatffi9sareawho1esaleadoptionoftheprevai1-
ing party's proPosed findings.

40/ In Cross v. P?sley, 267 F.2d, 824 (8th Cir. 1959), the
ilghth Cffi on language from the Ninth Circuit
cai", Irish v. U.S. , 225 F.2d 3, I (9th Cir. 1955), held the
rinain@uatebecausetheyfai1edtoaidtheappe1.
Iate c5urts in "a clear understanding of the basis of a trial
court's decision" and therefore remanded the case to the dis-
trict court for additional findings of fact and conclusions
of law.

4L/ Bradley v. Marvland Casualtv Co., 382 F.2d 415, 423 (8th
Cir. L967).

42/ United States v. Birnbach, 400 F.2d 378 (8th Cir. 1968),
empfra tfre RuIe, (I) to aid the aPPel-
late court on review- and (2) to assist the trial judge in the
adjudicative processr &s well as the Advisory Committee notes
whlch cautioned that the "findings represent the judge's own
determination. See also: Swanson v. Youngdalgl 161 F:2d I7I
(8th cir. L977); rarcon EqffiF.2d 806 (8th cir.
L976); and Stanley .2d 55I (8th Cir' 1979)'

43/ Schlenskv v. Dorsey, 574 r.2d at 148-49 (3d Cir. 1978);
ffi6ss@d at 752-53 (3d cir. 1965).

44/ See, €.9. r Fave CorPr- l.r. .Yarcg-Illerlationa!, Inc. , .67744/ See, €.9. r !'ave L:grP: .v. _Yarcg-llFernatrr.lrrd:, rrru' 1 .e t t
FfZa 5OO, l[f 5 Amstar Corporation v.F.2d 500, 501, 502 n. 2 (5th Cir. L962)i Amstar UorporaElon v.
Domini's PLzza, Inc., 615 F.2d 252,258 (5th Cir. 1980); Kaspar

r,ees Engineef inq , 5T 5 F.2d 530, 543 ( 5th
, 508 F.2d L26v. Farrow, 508 F.2d L268

-II . LJlOli l\J.lIllELL v. UqMEs, rr'v' v' rs55vwt lvY -

(5th cir' rg ' 559(5th Cir. 1978); James v. Stockham Valves & !'ltt:.ng L:o: ' 55v
F.2d 3lO, 314 n. f--(jth Cir. L977) i Georqe W. Bennett BrvsonF.2d 310, 314 n. I (5th Cir. 1977)i Georqe w. Bennett tsrvson
& Co. v. Norton Lilly a Co., 502 F.2A 845 (8th Cir. L979);

nama Canal 9o-, 298 F.2d 733, 737Panama Cana} Co - , 2'.

(5th Cir. 1962).

45/ Ramey Const. Co., Inc. v. Apache Tribe, Etc., 6L6 F.2d
T64, A-7 (10th cir. 1980).

46/ International Controls CorP. v, Vegco, 490_{-29 1334,
T3ar .,
329 F.2d 76L (2d Cir. 1964).

47/ In re Las Colinas, Inc.,
1970 ) , cert. denied , 405 U. S .

426 f.2d 1005, 1009 (lst Cir.
1057, 9l S.Cr. 1002 (L972).

48/ The Ninth Circuit has repeatedly cautioned the trial courts
E{ainst the practice of adopting one party's proposed findings.
See: Vutton Et Fils, S. A. v. J. Laqq Enterprises, Inc., 644See: VUttOn Et FiIS, S. A. v. .1. Lang Encerprlses ' Inc. , orls
F.2d z

v1



48/ Continued

v. Rvnco Scientific Cofpr, 680 F.2d 505, 607 (9th Cir. 1982);
,- - 137

Corporation v. f nt' I f,oIrgElro. re$ail s anil WaEehousg{rgn' s-Vnig!,
, 651 F-2d 622

(9th Cir. 1981).

49/ Earlier Fourth Circuit cases expressed no per se disaP:-
lfoval of the use of such findings. S"9: THE SEYERANCE, L52
7.za 9I5 (4th cir. 1945); chicopee Manuf+ctufiqg.corPt v.
Kendall Co. , 288 F.2d 7L9,--nTz;rq{n cir. 196r ) ; white v.
eEfrIlfla--Eperboard corp. , 564 F.2d 1073 (9th Cir. L977) '

50/ Askew v. Uniteq €!e!es, 680 F.2d L206, L208 (8th Cir.

r983 ) .

5L/ tunsrar Corp. v. Domingrs Eizzar I!9. r !15-I .2d,282 ( 5th

1978 ).

52/ In re Las Colinas, Inc., 426 F.2d 1005, 1010 (Ist cir.
1970 ) .

53/ Ramev Construction Co. v. Apache Tribe, 5L6 F.2d 464, 469
( rOtn Cir. 1980 ) .

54/ Cuthbertson v. Biqqer Frgs. , 79? \.2d 454 (4th Cir. 1983);
eEoc , 698 F.2d 633, 539-41 (4th

55/ Amstar Corpor+tion y. Domino's Pizza, Inc., 5I: F.2d 252,
Ba t ,

298 F.2d 733, 738 (5th Cir. L962).

56/ continuous curvE QgBtag!-LelFgse. rnc: -Y:. Rvncg. sqig{ttific
rpo ir. L982 ) ; -united 9!+tes

ffiffi'ar F.2d 1368 ( 9th Cir. 1981) , .cef t. denied ! 154ffi3, Lo2 s.cr. Io0I, 7L L.Ed.2d 294i Hagans v. Anl{us,
551 F.2d 622 (9th Cir. 1981), cert. denied, I02 S.Ct' 313, 454
u.s. 859, 7O L.Ed.2d r57.

57/ United States v. Forness, supra at 929

could be characterized as either58/ InadequacY of findings
conclusory, general findings
353 U.S. 278,4 L.Ed.2d 1218,
of specificity to afford the
ing of the basis of the trial

as in Commissioner v. Duberstein,
80 S. ia

reviewing court "a clear understand-
court's decision." AlIied Van

Lines, Inc. v. Sma11 Business Administration, 667 F.2d 75L, 753
th Cir. . See also: ffiissippi Extended

Care Centers, rnc.l zTE Flza

v].r

Cir. In this



58/ Continued

employment discrimination case, the appeLlate court vacated

"rrE 
rl*anded a trlal court's decision which rnade only golglu-

""iy-iindings. 
But sees Raqirez v. Hofheinz, 619 F.2d 442

iagf, cir. riaol,-wtreiEin affiorandum opinion
was sufficient under Rule 52(a) although the memo did not
.""t"i" any detailed discussion of aPPlicable Iaw and did
not cite cases or Etatutes-

- vll.l