Schwerman Trucking Co., Plaintiff-Appellant-Cross v. Gartland Steamship Company, Defendant-Appellee-Cross

SWYGERT, Chief Judge

(concurring) .

I fully concur in Senior Judge PERRY’S thorough and careful opinion. However, I do wish to express a caveat in respect to the adoption by the district judge of the findings proposed by the prevailing party, here the defendant.

In this case the district judge apparently had both parties submit proposed findings of fact before he rendered his decision. This is an acceptable procedure provided that the judge uses these proposed findings only as an aid in the preparation of his own findings of fact. Here, the judge announced his decision and then requested the prevailing party to select those portions of his proposed findings which were consistent with the oral determination. It appears that this second set of proposed findings, after examination by plaintiff’s counsel, was signed by the judge without change.

This court, as have others, has expressly condemned the “mechanical adoption” of the prevailing party’s proposed findings. F S Services Inc. v. Custom Farm Services, Inc., 471 F.2d 671, 676 (7th Cir. 1972); Holbrook v. Institutional Insurance Co. of America, 369 F.2d 236, 242 (7th Cir. 1966); Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339-1340 (9th Cir. 1970); Roberts v. Ross, 344 F.2d 747, 751-752 (3d Cir. 1965); United States v. Forness, 125 F.2d 928, 942-943 (2d Cir. 1942). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-657, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

Since we are bound to accept the findings of fact of the district court unless they are “clearly erroneous,” it is important that these findings truly represent the objective determination of the trial judge without the partisan slant of the victorious litigant. I believe that a reviewing court can confidently apply the “clearly erroneous” standard only when the written findings of fact are substantially the work product of the district judge himself.