More Thoughts on Procedural Fairness and Oral Argument   Leave a comment

In an earlier post, I asked others for their suggestions on how judges should approach oral argument or otherwise improve their skills at achieving procedural fairness.

Here are two more responses.

Kevin Burke

 

Rebecca Love Kourlis is the Executive Director of the Institute for the Advancement of the American Legal System. She was appointed to the state Supreme Court in May 1995. She previously served as a district court judge and worked in private practice in Colorado.

Her comments: “Oral argument is a unique opportunity to get an ‘executive summary’ of the important issues in the case from the perspective of the advocates.  Both as an outgrowth of my experience as a trial judge, and as an appellate judge, I have the following suggestions for judges.  First, prepare.  Read the briefs, distill the issues down to what you think is most important and identify the aspects that trouble you.  This would seem to be axiomatic, but I fear that it is not.  There are most definitely judges who take the bench without having spent the necessary time to focus in on the issues in dispute.  Second, be respectful: of counsel (let them make their argument) and of your colleagues.  Hypothetical questions are seldom a good use of counsel’s or the Court’s time; and leveraging questions against another member of the Court is transparent and ineffective.  If there is a built-in division on the Court, it is not likely to go away as a result of some targeted question to counsel.  Third, remember that oral argument may be the ONLY chance the litigants have to see the appellate process at work.  The impressions that the Court leaves will be lasting.  Hence, judges must conduct themselves in a dignified manner that reflects well on the system.  I remember all too well, as an advocate before an appellate court in Colorado (a long time ago), being upbraided for having seated my client at counsel table, rather than in the audience.  The client was completely befuddled, and asked me how the Court could possibly justify excluding from counsel’s table the person who had the most to gain or lose from the proceeding.  All of my explanations about passion or prejudice fell on deaf ears.  And, in the vein of public perception, judges should make sure that arguments are available to the public – either by audio or video recording.  Although argument may not be the most important part of the case from the judges’ perspective, it is the only public part of the case. Court proceedings are by, for and of the public – unless some extraordinary circumstance dictates otherwise.”

 

Lewis Remle is the Top Point Getter in Minnesota in this year’s Super Lawyers list. This is the ninth time he has received this prestigious honor:

His comments: “I think one of the biggest concerns trial lawyers have is whether the trial judge they will be arguing to has read the briefs which are the subject of the motion before the court. In defense of trial judges, their schedules are such that often times they might not have had the opportunity to review the motion papers as thoroughly as they might hope. One of the most effective methods I have seen trial judges use is to start the proceedings with specific questions he or she would like the lawyers to respond to relating to the dispute. This method has the immediate effect of sending the message that the judge has read the materials and puts the lawyers on notice that they need to tailor their arguments to not only answer the questions or questions but also that simply regurgitating the arguments in their brief will not be a n effective or persuasive presentation. I realize that this method is not always possible and may not apply to some motions but to the extent a judge can pre-empt the structure of a lawyers argument I think it is more likely that there will be some benefit to oral argument because I think lot of lawyers assume the judge has not had the opportunity to read the materials and so they simply parrot what is already in their briefs.”

 

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