Procedural Fairness on Appeal   Leave a comment

Guest Blogger:
Hon. Francis J. Connolly
Judge, Minnesota Court of Appeals

We often hear about the need for procedural fairness at the trial court level. This is no doubt because that is where the average citizen has his greatest contact with our judiciary. But I think we also need to make sure our appellate courts are aware of this issue and strive towards it every day.

It is easy to forget how litigants are almost an afterthought at the appellate court. Each attorney only has 15 minutes to argue and at the Minnesota Court of Appeals we do not allow the parties to sit at counsel table. Only the lawyers who are arguing the appeal can say anything. I once heard a prosecutor tell a victim’s family not to attend an oral argument concerning the defendant’s appeal of his conviction. He told the family that the court would only be interested in the legal issues and not the fact that their daughter had been murdered. He told them her name would not even be mentioned.

Even the opinions we write are couched in terms that do not discuss what the trial court got right but simply that the trial court did not commit error.

With that in mind, I would suggest a few points that appellate judges should keep in mind so that the parties and their lawyers feel that they have been “heard.”

First, perhaps before we ask any questions, we should actually let the lawyers make their argument. So often appellate judges are anxious to have some point addressed that we forget that someone actually wrote a brief and spent several thousand dollars of their client’s money so they would have the opportunity to have us listen to them.

Second, if we do engage in questioning, we should do so in a respectful manner. We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.

Third, it is very important that the tone of our written opinions is not shrill or harsh. While clearly we have to explain why one side lost and the other side won, it is important not to be sarcastic. Just because the appellant lost does not mean his argument was “meritless.” I am also not a big fan of humor in opinions. If you think you have a talent for comedy, then write for The New Yorker. I doubt if the defendant whose 20-year prison sentence you are upholding will be quite as taken with your witty comments as you are. Even worse, the defendant may think you did not take his appeal seriously.

Finally, get your opinions out promptly. We have a ninety-day deadline in Minnesota and it works. Parties and attorneys need finality so they can move on with their lives. Waiting six months or more for a decision is simply not fair. By keeping these principles in mind, we can ensure that procedural fairness lasts long after oral argument has ended.

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