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Some Thoughts on Procedural Fairness and Oral Argument   Leave a comment

Recently, the United States Supreme Court held an argument about the applicability of the plain-error standard to unsettled issues as of time of trial. It is an important issue of law and as a result the United States Supreme Court appointed Patricia Gilley to represent Mr. Henderson. The transcript begins as follows:

CHIEF JUSTICE ROBERTS: We’ll hear argument this morning in Case 11-9307, Henderson v. United States.

MS. GILLEY: Mr. Chief Justice, and may it please the Court: There are three primary points I would like to focus on this morning during my argument. First, the question presented by Mr. Henderson involves a very small subset of cases which are — which come before the Court under Rule 55 — 52(b) each year. These are the cases that were referred to as the special case in the Olano decision. They have errors which, at the time of trial, were unsettled or unclear; but, by the time they made it to the appellate court, they had become clear by a clarifying rule or a decision. Second -­

JUSTICE SCALIA: What — what about the time they come up here? 52(b) applies to every court, does it not?

The transcript is an interesting read, but what you will not find is Ms. Gilley able to state what her two other primary points were—at least in that language. Ms. Gilley got out her first primary point and the barrage of questions from the justices followed.

No one seriously should think that lawyers have a right to summarize their three primary points at oral argument at the United States Supreme Court or at a motion at the trial court level. Oral argument is for the benefit of the judges, who can seek answers to factual and legal questions prompted by the briefs. Lawyers have the chance to make their full argument in their written brief. Few things frustrate a judge more than a lawyer in oral argument just reading from their brief.

But at the same time there is a need for judges to strike the right balance. Voice and respect (two of the essential elements of procedural fairness) ought to cause every judge at every level to occasionally reflect on their “style” during oral argument. Being an effective judge in presiding over an oral argument is a skill as much as it is an opportunity to learn about an individual case.

There are ways to get very good at presiding over an oral argument. Reviewing a video is a terrific step. Perhaps not as good, reviewing a transcript is an option. Asking a colleague to watch (and offering to repay the favor) can give judges insight. Getting feedback from lawyers occurs where there are judicial-performance evaluations, but if you sit in a place where there is no official judicial-performance evaluation, judges can create their own feedback surveys.

In an effort to foster a discussion about how judges should approach oral argument or improve your skills at achieving procedural fairness we asked several judicial experts. Here are their thoughts.

Kevin Burke

Justice Walter Carpeneti sits on the Alaska Supreme Court. He is a former trial judge and former Chief Justice of the Alaska Supreme Court. His comments:

First, while the form of oral argument suggests that it is an opportunity for counsel to present an argument to the court, the reality is that it is an opportunity for the court to have its questions answered. I say this because the briefs contain the parties’ arguments, crafted exactly as they wish to present them. Assuming that the judges read the briefs before the argument, all of the information exchange from counsel to the court has already occurred. (If this assumption is bad, this whole discussion becomes pointless.) Thus, attorneys should not treat judges’ questions as annoying interruptions of their carefully-prepared presentations; they should welcome questions as a window into what the judge is thinking and an opportunity to correct any errors the judge might be about to make.

Second, this reality should not trump the need for courtesy (both to counsel and to one’s judicial colleagues) and for projecting the appearance of fairness. Thus, I’d suggest that an appellate court should ordinarily let counsel make an introduction that (concisely) sets out the attorney’s main points before starting with questions. I’d suggest that interrupting counsel’s answers should be held to a minimum—to be done, for example, only if counsel has misunderstood the question, is rambling in his or her answer, or is obviously trying to obfuscate. I’d suggest that interruption generally is rude not only to counsel, but also often to one’s colleagues on an appellate bench, because interrupting counsel’s answer often means that the questioner has not gotten the benefit of a full answer to the question that he or she asked.

Third, I think that courts ought not to be rigidly parsimonious with time when the court’s questions have taken up all of counsel’s time. While the most able advocates can work their “outline” points (along with their key support for those points) into their answers along the way, not all attorneys are adept at this technique. We should be careful not to leave counsel with the notion that, because the court asked nonstop questions, he or she did not even get the chance to get a word (or a whole argument) in edgewise.

So, my summary: The main purpose of oral argument is to give the judge(s) the opportunity to ask questions and challenge the advocates to defend their positions, but this questioning should take place with courtesy and respect, and the attorney should not be left thinking that he or she was denied the opportunity to be heard.

Judge Rene Worke is a Judge on the Minnesota Court of Appeals. Prior to be appointed to the Court of Appeals she served as a trial judge, including a term as chief judge of her district. Her comments:

When trial court judges ask me about my life as an appellate judge, I always start out with, “If I knew then what I know now!” Appellate oral argument is drastically different than hearing oral presentations at the trial-court level. At the trial-court level, a judge has a myriad of cases on the docket and argument time limits are determined by the individual judges willingness to indulge, as well as calendar backup. As a solo decision-maker, a trial judge is able to ask questions of both counsel in logical sequence, i.e., “What do each of you think is the appropriate date for running of the statute of limitations?” rather than forgetting that particular question when it finally comes to respondent’s turn at the podium. A trial judge is focused on making decisions, moving counsel along, and keeping an eye on the time clock. An appellate judge is focused on clarifying points raised in the brief and deciding what points are most persuasive in an allotted and predetermined time frame—with the luxury of nitpicking the entire record before and after argument.

Appellate oral argument can be tedious. We sit for several cases, all presented on the same day in sequence. Once we are “out there,” we can expect to sit for several hours. Because we are not “solo” judges, we must also be mindful of being courteous to our two colleagues. On occasion, oral argument can turn into ping-pong match with judges eliciting from the lawyers record-facts that support a position they have. These fact-finding questions—or posturing—by an appellate judge can frustrate colleagues—questions can be slanted, redundant, very long, and more like a statement than a genuine question seeking an answer. Lots of judicial energy can be spent to support one’s judicial theory.

And much like solo decision-makers, appellate jurists also bring their personal likes and dislikes to the bench. For example I am known as a by-the-rules judge. When I preside, it is not likely that the time limits will be extended (after all, the lawyers can say it in their briefs and be succinct in presentation), but this is my will. When a colleague is presiding, he or she may do the exact opposite, and I am subject to that timetable. At a recent bench meeting, this very statement was made after a newer judge mentioned that he wished both sides had a rebuttal opportunity (”When you preside you can do what you want.”). Lacking collegiality as a panel, this can occur.

My particular court is courteous, and we haven’t had any specific instances of someone hogging the questions, getting us off track, or so on. However, I talk to other state appellate judges and hear just the opposite occurring. I think most of us agree that one’s professional life can be good or bad depending on who you are teamed with—much like marriage!

A final obstacle to my court experiences is the fact that we travel to hearing sites. Our official chambers may be in one location, but on occasion a judge may choose to work from home or be assigned to work at another site. This requires an additional challenge in scheduling meetings to discuss case outcome.

Personal performance goals: At oral argument, my preference is for the appellant to tell us what we are empowered to do under his theory, e.g., this is a de novo determination by the appellate court—there is no deference to district court—or the trial court erred in [X] and we need to do [Y]. I remind lawyers that I am a former district court judge when they do not concede the discretion afforded to district court. I am most proud of my judicial skills when I hold back and refrain from asking questions—silly Perry Mason style questions. No matter how ridiculous a position, it is not likely that an appellant will concede how wrong his position is by a judge pointing out every error in his case. “You’re right, let me withdraw my appeal,” just isn’t going to happen. I do enjoy spirited debates, but it doesn’t add much to the presentation to point out all shortcomings. Asking less or no questions may even lead to a shorter oral presentation under those circumstances.

In my opinion, tools such as peer or colleague critiques are likely the best mechanism for an appellate judge to get fair feedback. Watching a video will show personal tics or traits on the bench, but the viewer is not likely to discern a questioning style or manner that could be improved.

Eric Magnuson is the former Chief Justice of the Minnesota Supreme Court and for decades has been one of the Midwest’s premier appellate lawyers. His thoughts:

It is very difficult to instruct judges on how to conduct oral argument because argument is intended primarily to answer the questions of the court.

Having said that, I tell lawyers preparing for argument to begin with a one-minute declarative statement on why they win. It should not be a list of the arguments that will be made (per your example), but it should be a powerfully concise statement of the ultimate merits. Viz. – “Appellate courts can and do reverse jury verdicts when the plaintiff has failed to prove every element of their legal claim. This is such a case. The judgment cannot stand.” The why behind that argument comes next, but the advocate has staked out his or her territory.

Another example – “The broad discretion of the trial court in framing jury instructions does not include the discretion to inaccurately state the law. That was the case here. My client is entitled to a new trial.” If there is a second issue, a second sentence should suffice. If there is a third, perhaps another sentence, but by then the court may be losing interest, and perhaps a more global statement would be better.

If the advocate takes the first seconds of an argument to state an affirmative proposition, then the rest of the argument is just support. Questions can follow on any topic, but the advocate has made the essence of the argument.

I suspect that this may sound simplistic, but in my experience, a clear and concise statement of the merits right out of the box establishes more control for the advocate, and provides less opportunity for the court to move the argument in a different direction at the very start.

After that, Katie bar the door. But when the time is nearly up, the advocate should repeat the same opening statement—leaving the court with a clear idea of the relief sought and the reason it should be given.

Even the most aggressive judge is likely to let the lawyer get out two to three sentences, particularly if they are positive and forceful.

Why Judicial Apologies Matter for Procedural Fairness   2 comments

Guest Blogger: Maxine Goodman

My recent article, Removing the Umpire’s Mask: The Propriety and Impact of Judicial Apologies, 4 Utah L. Rev. 1529 (2011), describes instances when judges have apologized in their courtrooms to parties or lawyers.   Examples include Dallas State District Judge Faith Johnson apologizing to a defendant’s family for throwing a “recapture party” after the defendant, who was briefly a fugitive, was captured.  At the party, the judge had balloons and served ice cream.  Judge Johnson later said she was sorry if her celebration offended anyone.  Judge Thomas M. Lynch IV apologized to Anthony Caravella who spent 26 years in jail and was later exonerated based on DNA evidence.  The judge apologized to Caravella on behalf of the criminal justice system of Florida.  And, Judge Vanessa Gilmore, a federal district court judge in Houston, Texas, apologized to the victims of a mortgage scam after sentencing the defendant to what the judge considered too light a sentence.

These examples are but a few of the instances when judges apologize in court, either on their own behalf or on behalf of the State.  The article posits that judicial apologies are warranted and necessary when a judge is responsible for causing harm to a party or lawyer and when the apology is sincere.    To be sincere, the apology must acknowledge the harm and not provide any conditions, like “if this behavior offended anyone.”  As an example of a proper apology, Justice Scalia apologized for unnecessarily chastising a lawyer for failing to include a reference to a statute in the lawyer’s brief, when he had, in fact, done so.  Justice Scalia apologized, saying “Mr. Bress, I want to apologize to you for accusing you of not printing 2254(d) and (e) in your brief.  You indeed did.”

Judges should not apologize when they are not responsible for the wrongdoing and their apology is not authentic.  These apologies come across as disingenuous and are unlikely to elicit forgiveness.  When the apology is politically motivated or compelled by accusations of judicial wrongdoing, the judge’s apology is likely to serve as a confusing gesture, unlikely to help the offended party regain trust in the judge and, by extension, the judiciary (and potentially the legal system).

The primary reason for concern over judicial apologies is the need for procedural fairness.  Research shows that parties are typically more likely to consider a court proceeding fair when the judge has treated them courteously, with dignity and respect.  According to this approach, a judge treating a party with courtesy is more important for the party’s perception of the fairness of a proceeding than the outcome of the hearing or trial.   Accordingly, a judicial apology can play a significant role in a party’s perception of the court’s fairness when a judge who has, for example, lost his temper and chastised a party or lawyer, offers an authentic apology to the party or lawyer.

Maxine Goodman is a Professor at the South Texas College of Law

Opinions as the Voice of the Court   Leave a comment

Guest Blogger: Douglas G. Denton

When the United States Supreme Court issued its written opinion in Bush v. Gore, 531 U.S. 98 (2000), it did so at 10:00 p.m. on a Friday night. This culminated an intense week of briefing and oral argument regarding a Florida recount of the presidential vote. By releasing the opinion on a Friday night, the court genuinely believed that it was acting in the best interests of the nation – and was complying with requests from media – to provide immediate and instant access to the high court’s opinion, precisely when it was completed. What happened, however, was immediate on-air confusion. In their extreme excitement, reporters quickly realized that they did not know how to read a high court opinion. On the following Saturday, The New York Times reported on Friday evening’s events: “As Mr. (Brian) Williams offered bits of encouragement, the (MSNBC) reporter began flipping anxiously through the document. ‘Hang on, Brian!’ Mr. (Bob) Kur said, struggling to find a page that offered some encapsulation of the decision. ‘Looking for the summary.’ When at last he found something, Mr. Kur began reading aloud, but the legalese was almost impossible to make sense of. The mandate placed on television for instant clarity and coherence proved elusive … One problem for the networks was extracting a clear narrative (regarding the substance of the opinion) from the many people they had reading the document simultaneously.” (Peter Marks, Contesting the Vote: The Media; Once Again, the TV Mystery Prevails as Late-Night Fare, N.Y. Times, Dec. 13, 2000, at A1).

Memories of the fallout from the release of the Bush v. Gore decision prompted members of the 2008–2011 Harvard Executive Session for State Court Leaders to begin a dialogue regarding how and when opinions of the high court should be released. For example, what tools or strategies might encourage broad media and public understanding of opinions, particularly when a common high court policy is that “the opinion speaks for itself”? This dialogue led to extensive research by the Administrative Office of the Courts in California and the National Center for State Courts, including a survey of all 50 state high courts. It also lead to a new Harvard Executive Session Paper, “Opinions as the Voice of the Court,” which is co-authored by Wallace B. Jefferson, Chief Justice of Texas; William C. Vickrey, Retired Administrative Director, California Administrative Office of the Courts; and myself. The paper discusses the workings of state supreme courts and effective communication through the lens of procedural fairness.

Over the past decade, all courts – from the U.S. Supreme Court to the hundreds of trial and appellate courts across the nation – have evolved and learned how to better inform, prepare and engage with modern audiences. Effective collaboration between media,  bench and bar is crucial to achieve public understanding of rulings, a key ingredient that helps achieve procedural fairness. “Opinions as the Voice of the Court” speaks directly to how the preparation and dissemination of high court opinions (including use of tools like plain language, summarization, and effective communication via the web) may help courts to ensure that each individual opinion—the voice of the court—successfully communicates and demonstrates to various audiences that the court has listened to parties, fulfilled its unique role as an arbiter of justice, and reached a fair outcome.

Douglas G. Denton is a Senior Court Services Analyst at the California Administrative Office of the Courts (AOC), San Francisco 

Posted September 4, 2012 by proceduralfairness in Courts, U.S. Supreme Court

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Good Judging Often Starts with Good Listening   1 comment

Our last blog entry asked, “Where to start?” A good case could be made that good judging often starts with good listening. After all, for the average trial judge, where does the information come from? A great deal comes from a witness, an attorney, a probation officer, or someone else who speaks to the judge in the courtroom.

Yet how much training does the average judge get on listening skills? None.

Contrast this with the training we all get in reading. Reading comprehension is taught and studied as we go through elementary and secondary education—but we don’t get trained in listening skills or tested for listening comprehension.

When Kevin Burke and I do half-day or full-day training programs, we often include a listening-skills test from HRDQ, which comes with a booklet providing tips for improving those skills. You can take the online version of the test for $16. (Psychology Today offers its own listening-skills test online for $7.) Both sets of tests rely upon self-reporting about how you approach listening situations.

HRDQ breaks down its suggestions into three categories:
Staying Focused: Sometimes we’re our own worst enemy when it comes to listening—we have lots of other things on our mind. The careful listener prepares to give the speaker full attention, monitors whether attention strays, and corrects the situation if it does.
Capturing the Message: We need to be open-minded to capture the message the speaker is trying to send rather than our preconceived notion of what is being said. This can be especially true for judges who hear (or think they hear) the same stories day after day. Offering a summary of what you’ve heard so that the speaker can confirm you’ve got it right can help.
Helping the Speaker: Not every speaker can handle a judge’s interruptions or distracting verbal comments. If you’re really trying to listen to what the speaker wants you to hear, you’ll be willing to make the environment conducive for good communication.

Given the extent to which good listening skills can be critical to judicial performance, this is an area that deserves greater emphasis. And it fits nicely with procedural fairness: how can a litigant perceive that we’ve given them voice—by listening, understanding, and addressing their concerns—if we haven’t first given the listening part a good effort?

Let us know what you think. How do you maintain your focus during a long day on the bench?

Posted May 26, 2012 by Steve Leben in Courts

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