The Journal of Appellate Practice and Process
Volume 16 Issue 1 Article 2
2015
A Practical Guide to Appellate Judging
J. E. Cote
Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess
Part of the Judges Commons, and the Legal Profession Commons
Recommended Citation J. E. Cote, A Practical Guide to Appellate Judging, 16 J. APP. PRAC. & PROCESS 15 (2015). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol16/iss1/2
This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected].
ARTICLES Vol. 16, No. 1 (Spring 2015) (Spring 2015) No. 1 Vol. 16, ROCESS AND PROCESS AND PROCESS P I have done three studies about I have done three studies about 1 THE JOURNAL OF JOURNAL THE NTRODUCTION I. I RACTICE AND P
APPELLATE PRACTICE PRACTICE APPELLATE PPELLATE
A
This article is designed primarily for two groups of people: for two primarily This article is designed as a justice on three years I write this after twenty-seven OURNAL OF J HE T *Justice of Appeal, recently retired, Court of Appeal of Alberta, of the Northwest *Justice of Appeal, recently retired, Court of Appeal of Alberta, of the Northwest Nunavit. Territories, and the Territory of to age seventy- tenure federally appointed (and have are all Their judges and provincial. 1. basically a fused court system: Most Canada has superior courts are both federal in Canada. five). There are almost no intermediateAppeal Courts of how appellate courts and judges do and should operate in the how appellate courts and judges studies were for the Canadian United States and Canada. Two and very busy American very able Judicial Council. Some view of intimate an me gave state appeal courts federal and had some part in training hard at work; I also have themselves A PRACTICAL GUIDE TO APPELLATE JUDGING JUDGING TO APPELLATE GUIDE A PRACTICAL J.E. Côté* wondering whether to become lawyers or trial judges who are become have recently people who appellate judges, and also enjoy courts may appeal of appellate judges. But observers the curtain. a peek behind Canadian Courts of Appeal.
. PP ROCESS P , 15 J. A S I RACTICE ANDRACTICE P ORK W PPELLATE A PPELLATE A A. In General OURNAL OF OURNAL I keep reading the reforms made by the by made reforms the reading I keep HAT J 2 The Paperless Court of Appeals Comes of Age of Appeals Comes Paperless Court The
HE II. W
99 (2014) (describing the technologies adopted by an intermediate 3
ROCESS A late colleague used to say of an appellate judge’s lot that lot that say of an appellate judge’s to used A late colleague appeal court daily both In practice and in principle, an two appellate courts, a What about a typical state with The most helpful approach to summarizing appellate work to summarizing approach helpful The most .&P RAC P management. I have written for years on civil procedure, and chaired Alberta’s Rules of in teaching and writing on time experience And a long time ago, I had some 2. Court Committee. fully electronic. developments in this connection, the reader might For news of recent 3. involve reams of paper until all appeals are will continue to process The appeal consult Philip G. Espinosa, it’s all indoor work and no heavy lifting. Readers probably work and no heavy lifting. Readers it’s all indoor appellate do have to judges But some guessed that already. courts of appeals in the United travel (especially in the federal does literally involve times of paper at States). And the volume heavy lifting. plays variations on those law. It also corrects error and makes law, or promoting such as clarifying or reasserting themes, used to say that when he chief justice of results. One uniformity in a search for truth, but was a trial judge, he had been engaged when he wentcourt, he switched to searching for on the appeal error. law, and an to make court which is supposed supreme supposed to correct error? appeal court which is intermediate Of necessity, each court doesEven then, the two tasks overlap. when either type of of both. But there can be trouble some the two between balance a proper appeal court fails to maintain different functions. 16 T 16 judges. appellate new two top English appeal courts. All that has shown the progress, has shown the progress, All that English appeal courts. two top ways and range of good run an appeal court. to development, court, appeal an judge on an individual work of the describe is to most and the problems emphasize I will that here. do so I will to solve them. methods effective personal appeal court in the state of Arizona as it has moved toward paperless procedures). paperless procedures). toward moved it has as Arizona state of the appeal court in
Sometimes sympathetic Sometimes 17 4 UDGING J B. In the Trenches PPELLATE A
UIDE TO G , Winterbottom v. Wright (1842) 10 M. & W. 109 (1842) (“Hard cases, it
See, e.g. What is the aim of appellate work?of appellate A is the aim What judge on a trial court bad law. make Hard cases indeed oriented to paper and is usually intensely Appellate work of a new appellate The first effect is vital, to the surprise RACTICAL 4. AP in individual cases, or aid justice to produce do much can often an appellate court, But on no jury is involved. when especially The facts and safely. legitimately harder to achieve that is often to tweak be tempted judge may fixed. An appellate are usually out is just that case justice in for whom a party to favor the law, long run, the experience shows that in the of reach. But sad for often produces injustice that impulse effect of following from a past evil comes long-lasting That future litigants. many or her suit or now-forgotten individual in his effort to help one prosecution. 1. Reading oral interaction than does trial reading, and produces much less appeal courts which deny those work. That is especially true of extremely which impose cases, those for most oral argument draw panels and those which for oral argument, limits short time cities. However it comes judges who live in different from shapes the judges’ task several about, the orientation to paper ways. good at decisionmaking, be judge. Any appellate judge must Even the onrush of paper management. paper handling, and time it will flood the judge If it backs up, is considerable. (or emails) an appellate judge cannot if and his or her colleagues. What piece of each step with take at least one useful immediately or the desk reaching electronic communication paper or it whether in the in-basket, He or she will soon drown computer? of wood or of electrons. The judge’s life will be a is made appellate judges do more harm than unsympathetic ones. than unsympathetic do more harm appellate judges think an appellate judge should to become who wants Someone judge who is already an appellate someone about that. And it. should never forget has been frequently observed, are apt to introduce bad law.”). to introduce bad apt are observed, frequently has been
ETER P ROCESS HE P ,T ETER J. P RACTICE ANDRACTICE P AURENCE See L PPELLATE (1969). A RONG W O G OURNAL OF OURNAL J
LWAYS LWAYS HE Conversely, a good lawyer who did little Conversely, a A 5
HINGS T HY
:W A general knowledge of the law and its principles and of the law and its principles A general knowledge an important job better to fill They say that it’s sometimes is triage of one sort or Much of an appellate judge’s job Lawyers often lead a very different life. Some active life. Some very different often lead a Lawyers RINCIPLE well in their jobs keep getting promoted to different higher positions, until they finally get 5. Maybe some of them exemplify the Peter Principle, which says that people who do one which they are not good at. There they stay. P courtroom work, and was more at home with commercial with commercial at home was more work, and courtroom a fine appellate judge. make will sometimes transactions, legal worlds and the social, commercial, goals, and of how important than any But more really function, is very valuable. A truly bad judge is not one knowledge are ability and attitude. who is not even curious. who is ignorant of the law; it is one she does not really deserve who thinks that he or with someone work hard every day to learn the position. That appointee will and to be worthy. If you up to its demands, the work, to measure do not into that mould; an appellate judge, try to fit become on or woman be the big man think that you can relax and simply passed the entrance exam. because you have campus powers and put enormous legal systems Many modern The public deserves their responsibilities into judges’ hands. expressly pledge those oaths of office best efforts. Indeed many efforts. with law endowed richly is the court another. That is so whether that court’s whatever and or it is not, clerks and staff lawyers, clerks and lawyers do and do tradition of just what work those such triage. not do. Here are four examples of 18 T 18 poor tardy be judge will that from and judgments misery, stragglers. They settle fewer cases to trial. many lawyers take litigation juries. to judges and decisionmaking delegating suits, instead step. every interlocutory their rights at insist on all They usually the make are happy to have a jury to trial judges And some personal trial lawyers like a very good Some serious decisions. written but do not like long duel such as cross-examination, people will details. All such small and numbers briefs full of or even to succeed as appellate judges, gears to need to change tolerate that life.
19 UDGING J PPELLATE A
UIDE TO G
a. Scaling the Paper Mountain Mountain Paper the a. Scaling of paper judges a Matterhorn unload on the Many appeals of Time b. Assessing the Necessary Investment types of Next, the judge should have idea of what some RACTICAL AP exhibits. and trial transcripts reading, including or potential all keep reading and day out day in one judge cannot Usually Reading personal life). (and have a still stay healthy that and or all of it (beyond vital, but reading most of it carefully is some is often highly skimming) judicious some maybe experienced One would think that good counterproductive. what to read, quick to flag for the judges just lawyers would be or background semi-relevant is merely indicating what problem is But lawyers rarely do. This extraneous. completely confined, one when an appeal is supposed to be especially acute principle. or jurisdiction, to questions of law, way or another, often have law clerks or staff lawyers Here even a court’s to they are the first people at the court if especially use, limited staff lawyers are of more Law clerks and look at the material. directions by the judge. So the use when given specific tasks and and initial methods to analyze judge has to develop experience papers are important locate which so as to lawyers’ arguments, the can then Only not. those which are or less discard and more careful reading the usually then careful reading commence. But need not be unduly lengthy. with lots of bridesmaids, appeals deserve the Cadillac wedding of ushers, a consultant, a videographer, several an army chapel standard what types the acolytes, and a bishop, and for of referswedding suffices. (That distinction to any of a number including whether the case or differences, procedural streams staff clerks or law whether oral argument, would benefit from case should be directed to a lawyers help, or even whether the be quick to spot cases likely different court.) The judge should to be sent by default down an inappropriate track—either and or long enough to waste significant time permanently, money—which could cause a risk of injustice.
ROCESS P RACTICE ANDRACTICE P PPELLATE A OURNAL OF OURNAL J
HE
c. Assigning Responsibility for the Opinion for the Opinion Responsibility c. Assigning (possibly someone course, right the case is set on Once the Sense of the Case d. Developing a feeling real to try to have some it is important Sometimes it is very after the oral argument, right In conference (at the very by the end of oral argument Furthermore, 20 T 20 ideas develop some the appeal) should assigned to each judge form it should take, what the judgment, should write about who should example, be drafted. For first stage it should and at what before oral or disposition be discussed any type of judgment should do the Who argument? any oral or without argument, drafting? judge? One All three judges?One judge’s law clerk? A by the the answer is determined staff lawyer? Sometimes And always. not but for the appeal, chosen procedural track treat an appeal not routine—to frequently it is possible—though suggest. track initially assigned would differently than the The judge commences. for a case even before oral argument aspect of a pending some find that he or she should raise may more) colleagues two (or with the appeal before oral argument often a judge should do more assigned to decide it. And fairly trial reasons under appeal. read the briefs and the than merely views jell. the judge’s can make That way oral argument his or her colleagues that to tell unhelpful for one judge merely he or she cannot suggest thought, and that the case needs more conference after least, that At the very even a tentative answer. for producing is supposed to assign responsibility oral argument can much is done, nothing Until that a first draft of a judgment. the court will become often, fairly happen. If indecision happens gridlocked. idea about what issues or latest), a judge should have a good about. And he or she should entire appeals he or she feels firmly enough, to be able to see know enough, and have thought immediately when a colleague’s differing views either are research, or open up a persuasive, suggest need for more That judges. of the three different possible route to unanimity be able to to always has that an appellate judge does not mean issue and reach a snap think on his or her feet about every
OLE R Being such a judge 6 ROPER TTORNEYS P A 21 HE TAFF :T S UDGING J ORK W LERKS AND PPELLATE C A OES THE
D AW L HO
UIDE TO G FOR III. W
The reader may object that writing is no problem for object that writing is no problem The reader may Some judges make sound decisions, and know how to sound decisions, and judges make Some Although reading is central to the work of an appellate is central to the work of an Although reading RACTICAL appellate judges because busy ones may have law clerks (or, as have law clerks (or, because busy ones may appellate judges staff lawyers to we call them in Canada, articling students) and 6. below. V writing in Parts III and of aspects I return to other means having to become a prompt and prolific published author. and prolific published author. a prompt having to become means But even so, they have support them with good reasoning. Other judges can write serious trouble writing a judgment. writing, even shy away but do not really enjoy competently, lawyers. And true of most it somewhat. Both are definitely from lawyersto the dentist than write an would rather go some cannot do it. In a just paper about anything. Some important who can do theresuccessful law firm, always junior lawyers are a senior lawyer to perform such writing work, thus enabling transported to an appellate effectively. Such a senior lawyer law clerks and many however bench will have serious problems, wanting to become someone staff lawyers the court has. Thus, long and hard whether past job an appellate judge should ponder deeply, to writing or her him has accustomed and life experience quickly, and frequently. AP least a load, at heavy with a court a busy on But decision. argument. oral by the end of surface should conclusion tentative possible, the judge’s that is not when occasionally And even oral or two after within a day come decision should tentative All instances. the remaining of the great majority in argument, an appellate judge to become the lawyer wanting this said, experience has whether past job and life should ponder decisionmaking triage-style to such or her him accustomed processes. 2. Writing judge as important for a would-be appellate be just judge, it may of writing. importance central to grasp the
ROCESS P RACTICE ANDRACTICE P PPELLATE A OURNAL OF OURNAL J
HE
In my considered view, after long experience, a judgment after long experience, a judgment considered view, In my by a judge who is not submerged Any conscientious choice is delegation of The judge’s second and only other the latter puppet managed I have known a few judges who 22 T 22 professional Such for them. judgments and opinions draft are more other courts courts; appeal aid many do employees be, and clerks may as the law bright resources. But, starved for be, having may staff lawyer as an occasional as experienced True, some good solution. is not a very write judgments them And say little. need judgment the that are so simple appeals of the But no lawyers and law clerks are wonderful. staff many clone of is a None of those employees law clerk is experienced. any particular judge. than the other or two long written by someone more than a page different There are doubtless many very good. judge is likely not but it is the usual result. reasons for that, expected to has but two choices when of appeals, tsunami The first beyond a very routine one. produce any judgment draft of at least the a rough choice is personally to make analysis of the important parts. That certainly includes important routine text at then add more issues. Possibly other people can down doubtful points and loosethe beginning and end, and run detailed citations to law and ends. Certainly they can add the evidence. detailed instructions to give the whole draft. The judge would and then of the judgment, non-judge to write a first draft some on critical comments give back a host of numerous constructive to rewrite big in detail how that person’s first draft, suggesting with the the same do much parts of it. And then the judge would and seventh drafts. (There will second, third, fourth, fifth, sixth, all someone can anticipate drafts; no one be at least that many attempts.) else’s wishes on the first half-dozen But that process wasprocess and turned out good judgments. writing a first draft than work for the judge more usually much or herself would have been. how much himself (Not to mention a huge extra work it was for the ghostwriter.) Sometimes puppet master necessary. Playing of drafts proved number of gaps during always yields slow results, so there are dozens fades. which the master’s memory
23 UDGING J PPELLATE A
UIDE TO G
Fairly often I have carefully read (and tried to follow or to or to follow to (and tried read I have carefully often Fairly which author of a judgment the nominal A judge who is a delegate is somehow sense if the Delegation only makes under construction, a new building Consider that in many reasoning is even more of written legal Testing the strength RACTICAL AP which I other courts, from judgments mediocre distinguish) often look judgments Such were ghostwritten. suspect But careful in the abstract. or read, on a quick acceptable law which of routine settled often shows statements examination later a specific exact. Worse, correct, not approximately are only hidden topic will often reveal main the same lawsuit on topic the main internal contradictions on and subtle ambiguities build courts constantly some As a result, in the earlier precedent. foundations. new law upon shaky read but who has merely issues, important wrestles with the has not its central parts, of writing draft instead someone’s or she has really judge can never be sure that he tested it. Such a the contrary let alone tried to work with grasped the issues, is important: with the contrary view view. And working to is that attempts of a conclusion the best proof Sometimes prove the opposite do not work. clerk is rarely job. And the law more suitable person to do the is the judge, in part than the opinion better suited to writing or “Out!” or “Safe!” He calling is not an umpire because a judge law, make judgments An appeal court’s she does far more. rarely does, and the single “Affirmed” which the single word be even these words might word “Reversed” never does. And is well built. them wrong unless the foundation under Once taken and saved. are concrete pour of each extra samples to destructive strength are subjected they have set, the samples is found too weak, the If one sample testing in a hydraulic press. torn out of the building, re- corresponding concrete pour is built until the weak part is is poured, and retested. Nothing more principle on apply to judgments should replaced. The same appeal. the assayer’s heavily on relies even more delicate and It than does testing concrete samples. experience and judgment speak to a wider audience is no job for apprentices. Judgments to parties and the speak to also they alone; scholars than legal answer all the the public at large. The reasons for decision must
HE :T , Speech ROCESS What the P ENTER C TORM ,S RACTICE ANDRACTICE RIEN P H. O’B , at 122 (referring to the “secluded to the “secluded , at 122 (referring AVID AVID PPELLATE A 122 (1986) (footnote omitted). Indeed, on some some 122 (1986) (footnote omitted). Indeed, on , O’Brien, supra , O’Brien, OLITICS P OURNAL OF OURNAL J
HE
, 62 A.B.A. firms, as “nine and (Nov. 1976), 1454 1454, J. MERICAN A
7 OURT IN C I counsel neither perfection nor superhuman authorial superhuman I counsel neither perfection nor writing delegate judgment An appellate judge tempted to Some appellate judgments appear to be the product of a to be the appear judgments appellate Some staff drafting to a law clerk or Delegation of judgment UPREME Justices are Saying . . . . . Justices are Saying sometimes practicing law against D each other,” Powell, Jr., F. Lewis firms,” law “nine small, independent United States as 7. Maybe that is why some justices have characterized the Supreme Court of the S effort, especially for overworked appeal courts, or for any court for any court or courts, appeal effort, especially for overworked delegated writing much But too routine matters. deciding minor In the long run, it work. evils than just mediocre breeds more and creates future many people’s labor, saves no time, consumes problems. Isher problem. writing itself should frankly analyze his or or delay stealing time repugnant? Or is other earlier inefficiency needed to write? 24 T 24 to know takes experience It losing party. the from arguments detailed refutation. deserve a of them are and which what those law clerk some and ostensible author the Typically, committee. together but not race, tied a sort of three-legged were running poorer is often much The result as one entity. really working and substance, worse in either person alone: than a draft by harder to read. the panel do Often all judges on problem. lawyer yields another so totally with a new draft judgment, agree not immediately judges those three debates among Such discussion is needed. middlemen or less negotiations among be more then turn out to law is a knowledge detailed with the author if the draft’s true discussions, course unable to attend the judges’ clerk who is of not a judge. House of Commons (meeting in the House of Lords) (Oct. 28, 1943) (expressing his wish 1943) (Oct. 28, Lords) of (meeting in the House Commons House of bombs German by destroyed had been which Chamber, Commons for reconstruction of the it a our buildings shape us”). Is our buildings, and afterwards in 1941: “We shape no real premises until the mid- United States had of the coincidence that the Supreme Court the of Lords scarcely did, and House the did, of Canada Court Or that the Supreme 1930s? peripatetic? was for a long time Australia Court of High chambers” assigned to the justices of the Supreme Court of the United States, who engage who engage States, Court of the United of the Supreme chambers” assigned to the justices the federal courts of judges of the in little of the “direct daily outreach” common among institutionsChurchill once said that are shaped by the physicalNot so in Canada. appeals). Prime Minister Churchill, of England, S. Winston premises which they occupy. American appeal courts, the physical layout of appellate judges’ offices even looks like even looks appellate judges’ offices layout of courts, the physical American appeal separate little law e.g. firms. See,
Otherwise, 9 . 507, 531–34 (2012) (2012) . 507, 531–34 UMAN 25 J.L. & H ONTROLS ALE UDGING C J HO Personal and Official Authority: Turn-of-the-Century and Official Authority: Turn-of-the-Century Personal PPELLATE IV. W A
A. Coalition and Compromise and Compromise A. Coalition
UIDE TO G , Hunter Smith, , Hunter Few of those writers have sat on appeal courts. Few of those writers have
8 See, e.g. A senior or successful lawyer probably makes his or her his or her makes lawyer probably or successful A senior allow different. The law and the system Appeal courts are dissents yield several that Many writers have suggested RACTICAL (collecting and discussing scholarship about dissenting opinions). about scholarship (collecting and discussing 9. English-speaking world. the in unknown almost But that prohibition is now 8. Lighting a path for future generations is theoretically a benefit, a benefit, is theoretically for future generations Lighting a path appeal courts. But a dissent though largely confined to ultimate rare. A pretty statistically is path which successfully lights a new a to influence it is likely more effect if have a little dissent may of from that very decision. And higher court to accept an appeal which he concur in a judgment course a judge has a duty not to There are a few other wrong. convinced is or she is firmly of dissents. with an absolute prohibition problems are not fully drawbacks Their the benefits of dissents are slim. judge or an appellate a trial until one becomes appreciated judge. Y , 24 Dissenting Opinion the Lawyers and AP do usually in the firm other lawyers on files. The own decisions files. decisions on a partner’s the professional not second-guess subject runs the show, A trial judge in trial courts. It is similar owe him or even then, appeal courts usually only to appeal; and trial courts Judges on some appellate deference. her considerable all the deciding to them, those cases assigned even administer before trial. interlocutory applications a court that sits very little on his or her own. On one judge to do judges to of two or three takes a majority in panels, it usually nine, or be seven or courts, it may and on some decide anything; her liked his or who So a lawyer even more. occasionally back and the endless like not in the law firm, but did colleagues find these aspects of may forth of partnership meetings, They say, after all, that appellate work confining, or worse. anything a judge a majority, up without enough friends to make literature. writes is just benefits.
ROCESS P RACTICE ANDRACTICE P PPELLATE . A OURNAL OF OURNAL J
HE
A good appellate judge must be decisive, prompt, and well and well prompt, be decisive, must judge appellate A good the large judges repeatedly surprised by Why are appellate rules and unwritten Various courts use different traditions everyone’s to multiply Unless a new appellate judge wants 26 T 26 habits can make mental years, those But after a few organized. it can be Therefore, opinionated. somewhat or her him to colleagues to wait for judge for that daunting or frustrating worse for the It is still minds. up their make speed or to get up to judge on what another she disagrees learn that he or judge to spends An appellate judge truth and wisdom. sees as received listening to trying to persuade colleagues, time part of his or her to find It is disconcerting for anyone and getting surprises. them, with agrees respected friends) your most that no one (including the dawning of a particular case, creating aspect you about some realization that maybe I am wrong in which their colleagues can reason?variety of ways Without to say it is safe theories, psychological getting into controversial often reach in all walks of life learned people that different able emphasizing different things. decisions in different ways, training and life experiences. It Different people have different to work and humility takes a great deal of patience, experience, working style or whose with colleagues successfully different. Or just opaque. process is noticeably decisionmaking preparing Those include or practices to handle such interactions. held at various conferences depth for oral argument; in some encouraging draft judgments; stages of the process; circulating and various approaches to or discouraging private caucuses; judge must be quick to new appellate rehearing procedures. A learn those used on his or her court. and two or three separate work by producing a split panel to compromise will have appeals, he or she in many judgments where that is unanimity and to be willing to reach and persuade, one way to than more There is often and ethical. reasonable in a given appeal. So the judge reach the right and sound result Above all, and creative. diplomatic, to others, must be sensitive the judge has to be willing and able to suppress ego, pride of laziness, and suspicion. So anyone authorship, rigid dogmatism, player and is unable or unwilling to negotiate who is not a team And he or she difficulties on an appeal court. will have some
T I URMOUNT URMOUNT S 27 OW TO UDGING J H Furthermore, when an appellate Furthermore, 10 PPELLATE A
ORKLOAD AND
UIDE TO Get all of the materials for each appeal on which he on which each appeal for materials Get all of the on file and as they are as soon or she will sit, available. the reasons for At that stage, it is best to read are under appeal, then the decision which (If time brief, and then the appellee’s. appellant’s G A. Preparing to Hear and Decide the Case A. Preparing to Hear and Decide V. W
x x The workload of appeal courts tends to be heavy. What can to be heavy. What tends The workload of appeal courts That problem can be magnified when the judge’s decision magnified when the judge’s decision can be That problem can at least trial judges lawyers or most Presumably If a trial judge dislikes being overruled on appeal, moving on appeal, moving being overruled judge dislikes If a trial RACTICAL B. The Risk of Reversal . . . and the Court of Public Opinion of Public Opinion . . and the Court of Reversal . B. The Risk 10. constitutional ground. on a invoked may be some federal court jurisdiction of court, the the state’s supreme in question is now on Even if the judge one judge do about it? Here are some suggestions for first steps: suggestions one judge do about it? Here are some judge is overruled, he or she cannot take comfort in the fact that in the take comfort he or she cannot judge is overruled, was by a jury. the final decision of appeals, court or by that ultimate the media, is criticized by should who aspires to glory Someone student law reviews. not to an or the military, arts, sports, transfer to the stage, the appellate bench. But their full judging. elements of appellate the human imagine do not sink sometimes effects, and their combined implications, experiences them. in until the new appellate judge personally AP hearing panels on the judges three for all work the multiply will most appeals. colleagues can is likely no solution. First, to the appeal court him or from judge without even an appeal overrule an appellate of that judge’s in some not concur will her: They simply of appeal there is usually a higher court And second, judgments. appeal court. above the first
19 . 71, 74 HERE ROCESS 12 T P EV OUND forget!” .L.R F Written and Oral Written and LTA never LICE A RACTICE ANDRACTICE , 52 A , 52 P HAT W AND 247, 251 (2009) (noting that the rules that the rules (2009) (noting 247, 251 , , Mark Kravitz, R. a judge should note things a judge PPELLATE 11 A LASS ROCESS -G 13 History of Factums See, e.g. .&P OOKING RAC L .P OURNAL OF OURNAL J PP , J.E. Côté,
a statement about facts or evidence which about facts a statement even pivotal, if important, could be very is disputed, improbable, correct, but which any evidence citation; or not backed by of law which could bea proposition if correct, but which even pivotal, important, or is disputed, or is backed sounds dubious, at all. by either poor authority or none HE x x , 10 J., 10 A
HROUGH THE See, e.g. ,T No matter how obvious or memorable the case how obvious or memorable No matter make of reading, the judge should at the time seems views and puzzles at least a brief note of his or her at that early stage. presses at first, the judge should at least skim those those skim at least should the judge at first, presses early date.) at an materials briefs, When reading topics can up. Such needy following which deserve of the most are two but here forms, take many important:
x x ARROLL C All these early steps let the judge see whether more see whether more let the judge All these early steps “The horror of that moment,” the King went on, “I shall never, on, “I went King that moment,” the horror of “The of it.” memorandum a don’t make you said, “if Queen the will, though,” “You EWIS EWIS L Persuasion in the United States Courts: A District Judge’s Perspective on Their History, on Their Perspective Judge’s District Courts: A United States Persuasion in the Future Function, and (2014) (tracing the factum’s roots to Quebec, where court rules dating(2014) (tracing the where factum’s roots to Quebec, refer from 1809 to written “case”). each party’s filing of a 12. is often of nor improbable. oral argument neither contested before are or checking points which further reading Conversely, extensive little value, if it audits 13. this important point: make first to I am not the of the Supreme Court of the United States first referred to a brief “containing the substance States first referred the substance to a brief “containing Court of the United of the Supreme . and the points of law and facts . . and documents of all the material pleadings, facts as a brief—known the origins of the Canada, In in 1821). presented” intended to be factum—are older. material should be obtained from somewhere, whether more somewhere, should be obtained from material 11. of the United States. Supreme Court in the even unknown in the U.S., briefs were It is interesting to note that at one time 28 T 28 (1872).
29 UDGING J PPELLATE A
UIDE TO G
At some point before oral argument, the judge absolutely absolutely the judge oral argument, point before At some staff lawyers often prepare An appeal court’s law clerks or RACTICAL AP staff lawyer or a law clerk whether or be done, should research the part of some or read carefully asked to check should be may bar effective that need too late Discovering filed. materials issues also exposes Early reading lead to long delays. steps, or counsel. trial court or treated by the or superficially overlooked or both will about either something and how to do Whether of the assistance Sometimes time. lead some commonly require called upon. be lawyers forstaff or that of the the parties must of the carefully the reasons for decision read must personally the judge or briefs, and anything else which lower courts, the think prepare for the argument the judge those helping early, or the judge do that careful reading But should important. on which the argument (or the day the oral wait until just before there case)? It is hard to say; a non-argument panel is to decide judge’s depend on the particular It may are pros and cons. be to do both: solution may or note-taking habits. One memory at a late stage. That sounds Read early, and then review again marks) notes (and marginal like duplicated work, but proper the allowing the duplication, will minimize the first time made the or difficult parts of judge to focus on the most important case. are memos Those appeals. for upcoming prehearing memoranda and habits of individual to the needs more useful if tailored for three judges is memo judges. One general cookie-cutter helpsmuch less helpful. A good memo greatly by revealing any hidden materials, such as incomplete problems, submerged But whatever the system of issues, or apparent gaps in research. a judge to rely heavily on such preparation, it is dangerous for risky even to rely on them summaries by non-judges. It is to speed a day or personally gets up judge until the temporarily, the day set for argument, before Well two before oral argument. the case is ready for oral the judge has to know whether experience than a law more and decision. A judge has argument points half clerk (or staff lawyer) and can detect important hidden, and suspect red herrings and dead ends. A non-judge working for the court should try not to advocate one position at this early stage. So often he or she cannot fairly say whether the
HE :T ROCESS EGIN P That is B 14 435 (2003). But 435 (2003). S TO I The Oral Judgment The Oral HING ROCESS T RACTICE ANDRACTICE P .&P See J.E. Côté, RAC By sunrise the next day, 15 MPORTANT .P I PP 158 (2013) (discussing tentative-oral- (2003). PPELLATE OST A M , 5 J A ROCESS RITING HE W ,T .&P Begin at Once Begin at RAC OURNAL OF OURNAL J Tentative Oral Opinions: Improving Oral Argument without Oral Argument Improving Oral Opinions: Tentative .P NSTITUTE UDGMENT I J
PP HE
IMELY T UDICIAL
J , 14 J. A , Joshua Stein, RAFT OF B. Making the Decision and Issuing the Judgment: and Issuing the Judgment: the Decision B. Making C ATIONAL In many areas of life, long lineups or long waiting lists get long lineups or long waiting areas of life, In many in is the vital point a draft judgment When to write the judge should know usually By the end of argument, See, e.g. RT AND opinion practice of a California appeal court). California appeal a opinion practice of that is uncommon in the U.S. interested in the topic and I will not discuss it here. Readers use U.S. courts that practice of the few consider the tentative-opinion might, however, them. Spending a Dime 14. N 14. A the judge will have forgotten important parts of his or her parts important the judge will have forgotten all the three weeks, almost In thinking, let alone the arguments. good parts of it can some judge’s reasoning will evaporate; momentum And the mental never be recreated or rediscovered. even one day after argument. will drop dramatically longer, and short ones get shorter. That is true of many true of many ones get shorter. That is longer, and short of unwritten tasks. It is trebly true undone accumulated hardest The up in a judge’s chambers. backed judgments the judge the appeal which even than to write—worse judgment remembering. one which the judge has trouble dislikes—is the has done Judicial Institute National Canada’s appellate work. once published on this topic, and considerable consultation by it all up sums compilation The title of their suggestions on it. is to begin. thing important announcing that the most all the law. The judge flows it and from the first Commandment, scene fades, is disturbed, or is must take a snapshot before the psychologically: The helps And early writing overwritten. propel the drafting and momentum hearing day’s emotions process. paths to it he or she prefers. what conclusion and possible for a judge’s test is the acid a draft judgment Attempting who is to do the first draft the judge tentative conclusions. So must at once prepare a draft judgment. 30 T 30 has strong or work, lot more need a will is important, case merits. Practice in the Canadian Appellate Courts 15. the same day is a possibility. An oral judgment
31 UDGING J PPELLATE A
UIDE TO G
The judge always thinks that tomorrow, or the weekend, or or the weekend, tomorrow, that thinks judge always The has as soon as a particular judge So after oral argument, the judge to write a very On that first day, it is enough for difficult that it and appeal is so complex Rarely, the RACTICAL AP the writing. Unless to start better time would be a next week, will not Writing is false. today, that a fever of 104°F judge has and work will intervene, responsibilities other happen tomorrow; simple weeks. Even a for at least two will not start postponed interconnected like basic ideas, eight involve at least appeal will probably will After a few days the judge of string. a cat’s cradle their of most ideas, and will certainly forget of the forget some too close to To think otherwise steers far interconnections. brain can hold,vanity. No one’s retain, that many let alone weeks. things for several certain of a to see that the first draft assigned been definitely personally act at must judge that is written, appeal judgment the done? be all of Capturing immediately must once. What the later. How to capture Details can come judge’s basic ideas. before going to bed that useful ideas? By writing something should be a draft of a night, and usually that something same judgment. ideas or pieces of important rough draft which links the queries and flags remaining saves them overnight, information, is likely to be very long, judgment or loose ends. If the ultimate may of the key portions, plus a rough draft a detailed outline, case, the draft will have either suffice for the first day. In have to it check things. But making to gaps, blanks and reminders will be lost. ensures that nothing important immediately reading before any sort of more legal or factual requires some such the end of oral argument, draft is possible. But usually by And for an necessary. even such steps are not additional a true puzzle, the responsible exceptional appeal, one which is or dictate a very specific write judge should immediately describe precisely what should That memo internal memo. what specific results and be done, and research or checking must possible answers will flow from alternative conclusions generated by that research or checking. And the judge should not affected by the additional draft at once parts of the judgment research or checking.
, 16 IFE ROCESS . 406, 410 . 406, 410 P EV .L.R LTA RACTICE ANDRACTICE P , 16 A , 16 PPELLATE A , Book-of-the-Month-Club Advertisement, L Book-of-the-Month-Club , OLLEGIALITY ). letter read as follows:Churchill’s In its entirety, Temptations of the Bench Temptations See, e.g. No exhaustive catalogue of ways to be No exhaustive catalogue of ways VI. C AR OURNAL OF OURNAL J 17 W
HE ORLD W
, Robert Megarry, ECOND S
HE See, e.g. For all those reasons, an appellate judge needs a good deal Any court has two functions. One is to apply the law fairly. the law fairly. is to apply functions. One Any court has two Unless the judge has spare time on the first day, he or she he or first day, on the spare time has the judge Unless he or day, begins the process on argument But if the judge Sept. 27, 1954, at 3 (using Churchill’s statement to introduce an offering of his six-volumehis offering of to introduce an statement Churchill’s at 3 (using 1954, Sept. 27, history, T An appellate judge must remember, then, that appellate judges then, remember, An appellate judge must nor trial appeals, to parties neither with anyone: are not at war of appeal. Even parties who judges, nor colleagues on the court are usually sincere. are very wrong rude; usually one gains to be It is not necessary of diplomacy. more by being polite. 16. The other is to demonstrate to the public and to the losing party to the public The other is to demonstrate but and with an informed decision was reached fairly, that the Vice-Chancellor Megarry England’s reasonably open mind. is the courtroom person in a important the most that once said the hearing must leave him because party who is going to lose, were fair. proceedings court that the or her with the conviction 32 T 32 full draft. Indeed, like a respectable turn out anything need not up very late, staying to do so. Without danger in trying there is out a time to turn not have enough probably does the judge and important down, queries answered, with ends tied product sets in after real fatigue what is written checked. And authorities not be dependable. may recalling that the happily next morning the wake up then she can framing is already laid, and its foundation judgment’s to nail the the judge or others are ready so now completed; of the building. siding onto the outside (1978) (noting his conviction that “the most important person in the court room. . . . is the . . is (1978) (noting his conviction that important person in the court room. . “the most comes, “when the end urging courts to consider whether, to lose,” and litigant who is going and a full hearing?”). willhas had a fair run he go away feeling that he 17. you have to kill a “when 8, 1941, that he sent to on December the Japanese Ambassador phrased declaration of war about the moderately commented Churchill As Winston man it costs nothing to be polite.”
33 UDGING J PPELLATE A
Use old-fashioned language, not modern language, not modern Use old-fashioned Ask yourself how yourturns of phrase: have phrased it. would grandmother Say nothing more language. Avoid extreme than “very incomplete,” offensive or violent “curious,” or “lamentable,” “not accurate,” “ill-conceived.” or a colleague that a lawyer Do not say Say that suppressed or concealed something. x x x
UIDE TO Once in a while, it really is necessary to write is necessary a while, it really Once in criticizing stern in a judgment, and firm something these lawyer. On or one party’s judge the trial occasions, G
x Sir, the United Government in His Majesty’s of December 7th On the evening Kingdom learned that previousJapanese forces without warning either in the ultimatum with form of a declaration of war or of an a conditional declaration of and and bombed Singapore war had attempted a landing on the coast of Malaya Kong. Hong committed in flagrant aggression wanton acts of unprovoked In view of these of particularly Article I of the Third Hague violation of International Law and and the to which both Japan Convention relative to the opening of hostilities, has been at Tokyo His Majesty’s Ambassador are parties, United Kingdom His of in the name Government instructed to inform the Imperial Japanese in the UnitedMajesty’s Government Kingdom that a state of war exists between countries. our two consideration, with high to be, honour the I have Sir, Your obedient servant, Winston S. Churchill RACTICAL AP for hints are some But here is possible. and diplomatic polite judges: appellate 376 Parl Deb HC (ser. 5) (1941) cols.1358–59 (UK) (accessed Oct. 14, 2015; copy on file (accessed Oct. 14, 2015; copy on 376 Parl Deb HC (ser. 5) (1941) cols.1358–59 (UK) An electronic copy of the declaration is with Journal of Appellate Practice and Process). available at http://hansard.millbanksystems.com/commons/1941/dec/08/prime-ministers- declaration#column_1358.
ROCESS P RACTICE ANDRACTICE P 18 PPELLATE A Instead, say that the reasons for Instead, say that the reasons the decision (or jury instructions) of trial court did so. OURNAL OF OURNAL J
When writing an internal memo to judicial to judicial memo When writing an internal a draft it is better to say that colleagues, into a does not go deeply enough judgment who to say that the judge question than wrote it does not. it has been “forgotten” or “overlooked,” or or “overlooked,” “forgotten” been it has “insufficiently point was that the researched.” disagree with the possible) (where Instead the whose submission view of the party accepts. colleague begin with simply argued, And if no party so whether [proposition wonder “One might colleague], but no party so being adopted by argued on this appeal.” appeal Do not say that the judge under overlooked or left out vital points. Do not say even that he or she erred. HE x x x x x
More frequently, it may be necessary to write a necessary to be it may More frequently, being a proposition with disagreeing judgment not In this situation, do adopted by a colleague. all. at the colleague mention and that it is that we all err occasionally, Remember of work, criticize a piece tactful to usually more rather than its author.
x x 18. is unnecessarily I remember that a very The latter could to—do the research, either of which harsh. Indeed, be read as implying that he or she be botheredcannot—or cannot able and experienced state supreme court judge used to chair an annual seminar for or the audience if he Canadian judge in ask a always would at which he appellate judges 34 T 34
35 UDGING J ONCLUSION VII. C PPELLATE A
Such comments should touch on readability, on readability, should touch Such comments tone, and phrasing, ease of understanding, also to detect unfortunate which is likely misinterpretations, produce that might terms or offence. misunderstandings, the to undertake this best person Sometimes with the unacquainted totally reading is one to but well accustomed appeal in question, social attitudes. modern speech and x x
UIDE TO Sign no reasons for judgment beyond the routine, beyond the reasons for judgment Sign no read on the panel has who was not until someone and commented draft. on the comment which is that there is one And remember is hard to judgment never safe to ignore: that a draft be read as or could understand, ambiguous, unintended. suggesting something G
x x To the receptive reader, I close with an explanation. This To the receptive reader, I close RACTICAL she saw in Canada sharp comments of the sort exchanged between some American justices. American justices. exchanged between some sharp comments of the sort she saw in Canada it in anything like never seen always replied that they had judges Canadian Because the not language is that such sharp suggest chairman would then the event’s Canada, necessary. article is not intended to deter lawyers from becoming appellate becoming lawyers from deter to article is not intended is a wonderful, fascinating, and judges. Being an appellate judge The work is varied and career. stage in one’s legal stimulating with interesting letting one cooperate mind-expanding, and answer real-life make law, to solve problems, colleagues levels that satisfiesquestions. On many deeply. But one should know beforehand what the job entails. AP