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AVOIDING REMAND - MN Bench Book - Trial Procedures & Practices for Judges
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AVOIDING REMAND

From MN Bench Book - Trial Procedures & Practices for Judges

This section was prepared by the Hon. Gordon Shumaker of the Minnesota Court of Appeals

A remand for a new trial is not a major problem, although it can upset court schedules. Remands other than for re-trial, often for further findings or clarifications or to supply omitted information, are troublesome and challenging for the trial judge because they always come well after the trial judge has dealt with the case. The judge has handled many other cases and calendars and has a limited memory of the case because of focusing on the many cases that came after the case that is being remanded to them. Such remands required the trial judge to go back to matters that had been put to rest many months, or even years, ago. Remands cut into the already limited time the judge has available to deal with pressing current matters, all subject to deadlines of various sorts.

A. MOST REMANDS ARE AVOIDABLE

The following are some suggestions for the judge who does not want cases to come back after completion in the district court:</b>

1.Do not make findings of fact when deciding summary judgment motions, unless the dispositive facts are undisputed or stipulated (and if they are, you should say that in your order). Factual findings invariably involve credibility assessments 'and inferences and the weighing of evidence. These are functions reserved to the trier of fact. So, when the Court of Appeals get an appeal from the grant of summary judgment and the order is labeled "Findings of Fact," that is a red flag, and very often the case gets reversed and remanded.
2. When making findings after a bench trial, do not merely recite what the respective claims were or what the testimony was, you must resolve the conflicts in the evidence by indicating which you found credible and persuasive. You do not have to explain why you found certain testimony persuasive. [1].
3. When a statute or rule requires that you make findings as to various elements, do so, and be sure to cover all of the essential elements. [2]

The failure to make complete findings when required to do by statute or rule often leads to a remands.

Here are common areas that require findings and that lead to remands when findings are not made or are incomplete:

  • Marriage dissolution and custody. (See the applicable statutes).
  • Termination of parental rights. (See the applicable statutes).
  • Juvenile dispositions. [3]
  • Orders for protection. (See the applicable statutes) ,
  • Felony sentencing departures from the guidelines. [4]
  • Probation revocations.[5]
  • Stays of adjudication.
  • Attorneys' fees awards in marriage dissolutions.
4. Parties will often assert claims and alternative claims, or they will raise multiple issues in motions. You must address them all. That does not mean that you have to decide and explain each issue, but you must do 2 things:
  • Acknowledge each and
  • Either decide it or state why it is not necessary to reach it or to decide it, or why you are unable to decide it.
Parties who bring appeals often allege that the district court overlooked an issue that would have changed the outcome of the case and they point to the fact that the court did not even mention that issue. Remand is not inevitable but sometimes is the only course open to the appellate court.
5. In criminal matters, when the accused desires to plead guilty, make sure to obtain a clear waiver of each of his trial rights and an adequate factual basis. This is also the case for stipulated facts trials especially when the defendant is submitting the case on stipulated facts and waives the jury in order to preserve an issue for appeal.[6]
6. In criminal matters, when the rules require a personal waiver from the accused, it must be on the record and come from his or her own mouth and not from counsel.

Areas requiring an on the record personal waiver include:

  • Waiving the right to a jury trial,
  • Stipulating to an element,
  • Waiving the right to testify or the right to remain silent, and
  • Waiving the right to have the jury sequestered during deliberation
7. Do not become excessively involved in plea negotiations.[7]
8.In sentencing a multiple-count case, make sure you make a record of the disposition of every count.
9. For Spreigl issues, findings are not mandated, but they are helpful.
10. Make a record of everything!

Counsel and parties want to know (and are entitled to know) why the judge has decided as he or she did. The legislature has mandated in many types of cases the statement of "reasons" in the form of factual findings and conclusions. On appeal, the district court is entitled to great deference, and the court of appeals does give that. But the court of appeals cannot defer to omissions of required findings, and often they have neither the authority nor the evidence to cure those omissions. Remand, then, is their only option. Two overall recommendations

  • Develop checklists of essentials that you must address in various proceedings, and then follow those checklists.
  • Enlist the aid of the lawyers to ensure that all bases are covered.

Because every litigant has a right to appeal, even if the matter is frivolous, you' cannot avoid that occasional appeal. But you can avoid remands by making it clear that you have done everything the law requires you to do in resolving an issue or a case.

  1. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989)
  2. Baker v. Baker, 733 N.W.2d 815, 825 (Minn. App. 2007).
  3. See M.A.C., 455 N.W.2d 494 (Minn. App. 1990).
  4. State v. Jones, 745 N.W.2d 845 ( Minn. 1985)
  5. State v. Austin, 295 N.w.2d 251 (Minn.1980) , State v. Modtland, 695 N.W.2d 602 (Minn. 2005)
  6. Minn. R. Crim. P. 26.01,Subd. 4.
  7. See State v. Anyanwu, 681 N.W.2d 411 (Minn. Ct. App. 2004).