Archive for the ‘Judicial Skills’ Tag

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.”

 

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

Posted October 23, 2012 by ncscicm in Courts

Tagged with , , ,

Civility, Courage, and Collegiality Among Judges Is Procedural Justice   Leave a comment

Guest Blogger: Ingo Keilitz

The principles of procedural justice and fairness — giving voice to litigants and other “clients” of courts, basing decisions on established rules rather than personal opinion, providing respectful treatment, and establishing trust — do not just apply to fair and just treatment of members of the public who appear in court, but also to the way judges engage with each other.

This commonality came to mind as I watched a video of an Open Society Foundation-sponsored talk by Albie Sachs, the former judge on the Constitutional Court of South Africa, an activist and a leading campaigner in the fight against apartheid.  In the video, Sachs discusses his 2011 book, The Strange Alchemy of Life and Law, written as his term on the Constitutional Court was ending.

Sachs was appointed to the Constitutional Court of South Africa by President Nelson Mandela.  He conveys with intimate candor what it was like to be a judge in the unique circumstances of post-apartheid South Africa, how his extraordinary life influenced his approach to the cases before him, and how, in this “alchemy of life and law,” the intangible qualities of passion and concern for protecting human dignity are required for law to work in the service of justice in a democracy.

Sachs speaks in the video about what makes an effective judge in terms of the “three Cs”- civility, courage, and collegiality. Civility, he says, is not just good manners.  It is respecting people with whom you differ, perhaps very sharply.  It provides a framework in which one can discuss and debate without rancor.  Civility is critical on the bench among the judges themselves and between a judge and counsel and witnesses.  Judges, he emphasizes, owe a clear duty to citizens to maintain a framework of civility in the court.

Sachs goes on to speak passionately about the quality of courage, which means following one’s conscience and having the integrity and conviction to speak the truth as one sees it, even when it’s inconvenient, even when it is embarrassing and unpopular, and especially with people one likes and respects.  Going along simply to get along, he might say, suggests a lack of courage.

His third “C” is collegiality, the capacity and willingness to engage with one’s colleagues in a rational way toward common ground, without divisiveness and without ill will.

As I listened to the video, I thought Sachs was defining procedural justice and fairness within the internal sphere of the court.  Though Sachs’ focus is on civility, courage, and collegiality among judges, it seems that the same qualities are required of judges to achieve procedural justice for litigants and other “clients” of the court.

Judges in a democratic society owe a duty to do justice, and appear to do justice, for all populations, including people employed by the courts.  Simply said, judges, as well as court managers and other court staff, must practice among themselves what they preach to others.  (This, incidentally, is the thrust behind the National Center for State Courts’ CourTools Measure 9 for trial courts and Measure 7 for appellate courts; see Who Has More Innovative Ideas Than You Do? Your Employees, Made2Measure, September 5, 2010; See also, In Praise of Employee Satisfaction, Made2Measure, November 22, 2006; Friendships in the Workplace Good for Court Performance, Made2Measure, August 14, 2006.)

The traditional concern of judges and a core goal of courts emphasized in legal education is to provide people with a forum in which they can get justice as it is defined by the framework of the law.  Judges pursue this goal through the correct application of law to the facts of a particular legal dispute.  A second goal, one that Tom Tyler associates with the tenets of procedural justice, is “to handle people’s problems in ways that lead them to accept and be willing to abide by the decisions made by the courts.”  The goal requires courts to maintain public trust and confidence, which Tyler says is “the key to maintaining the legitimacy of the legal system.” He acknowledges that procedural justice applies not only to litigants but to other people who work in the court system.

In the Open Society Foundation’s video, Sachs discusses an admirable modus operandi of the justices who sat with him on the South African Constitutional Court.  When a majority had solidified around an opinion, all the members of the Court rallied around the prevailing opinion and actually helped strengthen it, even if they disagreed with its conclusions.  Rather than framing their disagreements in terms of winning or losing, their shared goal of maintaining the Court’s legitimacy and enhancing public trust and confidence in the Court remained tantamount.

This to me is civility, courage and collegiality at its best. And it is at the essence of procedural justice. The manner in which disputes are handled, no matter in which part of the judicial process it is applied and with whom, affects procedural justice.

Ingo Keilitz is a principal court researcher at the National Center for State Courts.

Posted August 6, 2012 by ncscicm in Courts

Tagged with , , ,

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

Tagged with , ,

Where to start?   Leave a comment

There is ample material about procedural fairness on ProceduralFairness.org for judges and court administrators to start the process of making themselves and their courts more effective. The question is where to begin that process. There are two levels on which procedural fairness principles can be implemented in order to begin improving court outcomes and public satisfaction.

Most immediately, the individual judge can become more adept at demonstrating the criteria of procedural fairness during their interactions with litigants, lawyers, witnesses and others. Relevant tools on ProceduralFairness.org include descriptions of programs that videotape judges while on the bench to provide them feedback to use for self-improvement, as well as video and print resources that can be used to create judicial education courses on procedural fairness. The “Resources” tab includes “tips for judges” that can serve as a check-list to guide their behavior. Similarly, individual court administrators can become more effective by embracing procedural fairness principles in their interactions with subordinates.

Second, an entire trial court or court division can revise its policies and procedures in ways that seem likely to promote behaviors that are perceived as procedurally fair. These changes can be subtle but still highly effective.
Whether the target for change is the individual judge or an entire court, a possible starting point is to reflect on how knowledge of procedural fairness can help you make sense of successes in the past. Here are two examples of hindsight, brought on by learning about procedural fairness. Both examples come from a series of conversations with presiding trial court judges initiated to learn their reaction to a comprehensive judicial branch-wide program promoting procedural fairness principles.

In the first example, the presiding judge of a medium-size court (circa 30 judges) was already a believer in the program. When she became presiding judge, she was alarmed by the pile on her desk of phone message slips and letters, all containing complaints from small claims litigants that they had not had their day in court. When she asked her assistant about the pile, she learned that that such communications were constantly flowing in. Along with several other judges and her court administrator, the presiding judge went through the complaints. They began to notice a pattern – many of the litigants felt that their case had not been adequately considered. The judges identified as the problem their court’s practice of not giving small claims case decisions from the bench as contributing to this sentiment. Instead of giving the decisions from the bench, the court sent litigants form letters, some weeks after their trial, with the equivalent of “won” or “lost” checked off. A change to the letter remedied the problem. The judges identified five or so main reasons that a small claims litigant might end up on the losing side. With the relevant sentences inserted in each letter, the flow of complaints dwindled and then virtually ceased. The new, reasoned approach communicated that the decisions had been reached through a fair process. For the judges, learning about procedural fairness theory made sense of the success of their revised approach to small claims court.

Another “home grown” example of procedural fairness is a practice that surfaced in conversation with the presiding judge of another medium-sized trial court in the same state. Her court has adopted the practice of formally swearing in all new staff as court employees. The presiding judge personally administers the oath, with other judges and court staff as an audience. For this judge, hearing about procedural fairness made sense of the apparent benefits the court has gained from the inclusive, respectful manner in which it treats its employees.

In sum, a look to past experience may be a useful starting point for those considering the potential value of taking a procedural fairness approach to personal improvement or court reform. Ask yourself what has worked and what has not worked, and think if the lens of procedural fairness offers insights into how to do a better job.
David Rottman

Discerning Procedural Fairness in Appellate Courts   1 comment

Guest Blogger:
Roger Hanson

Two recent procedural fairness blogs try to identify workable criteria of procedural fairness in appellate courts and especially during oral arguments. The bloggers rightly point out the importance of how judges conduct the proceedings and emphasize the importance of civility in questioning both sides and letting both sides address the court..

However, isn’t the acid test that attorneys or pro se litigants apply whether the judges understand the issues in the case? If so, isn’t a pertinent and operational criterion that the judges know the facts? Presumably, U.S. Supreme Court Associate Justice Antonin Scalia flunked this test when he brought up the Cornhusker Kickback in the recent argument over the Affordable Health Care Act. His behavior suggested an incomplete and incorrect understanding of the provisions of the law under review.

A related test concerns what the judges say about the briefs in a case. If so, isn’t it also pertinent and feasible to assess appellate judges by expecting them to address the dispositive issues submitted in the briefs raised by counsel or pro se litigants? Certainly judges are entitled to ask other questions that they believe revolve around what they think are the dispositive issues. However, in the American appellate system where premium value is placed on the briefs, shouldn’t oral argument recognize this established value?

One more test might focus on the authorities raised in the briefs. If so, isn’t it feasible and relevant to assess whether the most eminent previous court decisions cited by counsel or pro se litigants received some recognition? Yes, judges can easily make new law, but they operate in a legal system where past authority counts. And in the recent Affordable Health Care Act oral argument, I didn’t hear a lot of discussion about previous and relevant U.S. Court of Appeals decisions. That omission was striking to me as an observer.

It seems to me that additional tests are possible that concern the judges understanding of the issues.Those tests are worthy of future research and legal analysis, in my opinion.

Roger Hanson lives in Denver and is engaged in legal research for the purposes of legal reform. He assisted the Right Honourable the Lord Woolf in his report of civil justice in England and Wales and has worked in Afghanistan and the Philippines in addition to American state and federal appellate courts. He always roots for the Kansas Jayhawks.

Supreme Court Gets a Passing Grade on Procedural Fairness—So Far   3 comments

In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck.  Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion.  But the oral arguments certainly set the stage for how people will view the process by which this case is decided.

On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception:  Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.

Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.

Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.

Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which  is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.

Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.

Only one justice simply seemed tone-deaf at times to the principles of procedural fairness:  Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.

During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one:  “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.

No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line.  Humor does have a place in arguments before judges.  But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.

Justice Scalia made at least one other potentially questionable comment.  In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law:  “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.

Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect:  “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full:  “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”

Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.

It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.

Steve Leben and Kevin Burke

Focused on Fairness: The Public Turns Its Attention to the U.S. Supreme Court   2 comments

Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.

To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.

The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.

This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”

Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.

Steve Leben and Kevin Burke

[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]

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.