Archive for the ‘Respect’ Tag
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.”
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.
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
The Utah Judicial Performance Evaluation Commission has posted its first formal evaluation of judges based on procedural-fairness criteria. The commission has evaluated the 25 Utah judges up for retention in the November 2012 election.
Utah is the first state to provide detailed evaluations of judges’ behavior in the courtroom based on procedural-fairness criteria. The Utah commission is required by law to provide a public evaluation of each judge up for retention, and the statute setting up the commission requires that its evaluations be based in part on observation of each judge in the courtroom. The commission adopted an administrative regulation providing for a corps of trained citizen volunteers who would observe each judge in the courtroom. Those administrative regulations also require that the judges be evaluated on procedural-fairness criteria: voice (e.g., whether the judge gave parties an adequate opportunity to be heard), neutrality (e.g., whether the judge displayed fairness and provided transparency in rulings), and respect (e.g., whether the judge demonstrated courtesy toward all who appeared before him or her). At least four different observers are used for each judge.
Through this program, Utah became the first state to evaluate judges specifically on procedural-fairness criteria. Two other states—Alaska and Colorado—have used courtroom observers as part of a judicial-evaluation program, but neither provided specific criteria for evaluating the judge’s adherence to procedural-fairness principles.
For the 25 judges up for retention this year, all were approved for retention, though three judges were approved with one dissent in 11-to-1 votes. In two of those cases, although the judges had positive ratings from attorneys, courtroom observers had raised some concerns and at least one courtroom observer had said that he or she would feel uncomfortable appearing in front of the judge.
Skeptics might suggest that when all 25 judges are approved for retention, the evaluation process isn’t meaningful. But there can be effects that are not obvious to us that occur over time in jurisdictions that do formal judicial evaluations: Judges who receive poor scores or would not be recommended for retention sometimes decide to retire or to return to practice rather than seek retention. In such cases, the draft evaluation or interim evaluation they have received does its job without requiring voters to act. (I have no idea whether this happened this year in Utah; I merely suggest that it does happen to some extent in jurisdictions with evaluation programs. But since evaluations are publicly released only for judges who stand for retention, there’s no public record from which we can determine how many judges voluntarily leave the bench based on negative evaluations.)
Adding courtroom observations focused on procedural-fairness criteria can be expected to improve judicial performance in this critical area. Utah’s efforts are to be commended.
For those wanting more information about the process in Utah, take a look at a recent article in the American Judges Association journal, Court Review, by Nicholas H. Woolf, a consultant to the Utah commission, and Jennifer MJ Yim, a commission member, or you can review a paper I presented to the Utah state judicial conference in September 2011.
Steve Leben
by Tom Tyler
Recent events in New York City make it clear that there is widespread and continuing anger over the street stop policies of the NYPD. This ongoing discontent reflects a broader paradox in American policing: the police have become more effective in reducing the rate of violent crime to historically low levels but their success has not led to higher levels of public trust in the police. There are lessons from this police experience not only for police commanders but also for judges, court administrators, and others working in the criminal justice system.
Based upon my own research and that of other social scientists we know why this performance without legitimacy paradox is occurring. Public anger continues because the police have not addressed what actually matters to the public. My research shows that police legitimacy is based upon how fairly the public thinks the police exercise their authority. Until the police change their policies and practices to address public concerns over procedural justice, controversies over police practices such as racial profiling, police street stops and the surveillance of Muslim Americans will not end.
Many cities, including New York City are experiencing dramatically lower levels of violent crime. Despite these gains public trust and confidence in the police is not increasing, nor is the large racial gap in trust and confidence between White and minority Americans closing. Better performance has not lead to greater public legitimacy. Why? Police leaders are failing to take account of public concerns. Evaluations of policies and practices by police leaders ask if they are effective in preventing crimes. The question of whether these policies and practices are viewed as legitimate by people in the community is not addressed. My research findings however tell us that effectiveness is not the key factor that the public considers when reacting to police policies and practices.
What does the public care about? Research shows that the key issue to members of the public is their evaluation of the fairness of the way the police exercise their authority: i.e. to issues of procedural justice. More than anything else people are concerned about whether they feel that the police officers to whom they give the authority to maintain order in their communities act using fair procedures.
What does the public mean by fair procedures? They mean first that when creating policies the police work with the community to identify problems and the strategies that should be used to address them. When dealing with particular citizens they allow those people to tell their side of the story, to explain their situation, before making decisions. When implementing the law the police explain their policies and how they are being applied in particular cases in ways that the public can see are neutral and unbiased.
The public also means that the police should treat people fairly. Fair treatment is respectful and courteous. It acknowledges people’s rights not to be demeaned, ridiculed or insulted by the police. And, the police are trustworthy. They act with integrity, accounting for their actions in ways that show good faith responsiveness to people and their problems.
Why should the police care about this public perspective on policing? Insensitivity to public concerns has led police departments like the NYPD to turn victory into defeat. Instead of being congratulated for lowering the rate of violence in New York City, or reducing the rate of unlawful shootings, the police are reviled by an angry population for mistreating people in the community.
And the police lose the benefits of public cooperation. Studies show that when people view the police as more legitimate they are more willing to defer to police authority; less likely to resist and defy the police; and that complaints against the police go down. Legitimacy further encourages willing compliance with the law and cooperation with police efforts in their efforts to stop crimes and identify criminals. When fairly treated people are more willing to work with the police in efforts that join the police and the people in the community in efforts to maintain order by attending community meetings or joining a neighborhood watch.
If officers dealt with people seeking to communicate respect and deliver fairness they would be working not only to prevent crime but to build public support for the police. And, more broadly legal authorities need to recognize the value of considering their policies and practices from the perspective of public concerns. That perspective emphasizes that people are “seekers of justice” and evaluate their experiences with the police and courts by evaluating how fairly they experience the actions of the authorities they deal with.
Tom Tyler, Professor of Law and Psychology, Yale University
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.]
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.
So what’s procedural fairness thing, anyway? Professor Tom Tyler has identified four basic components that comprise procedural fairness and drive public opinion about the courts:
1. Voice: litigants’ ability to participate in the case by expressing their viewpoint;
2. Neutrality: consistently applied legal principles, unbiased decision makers, and a transparency about how decisions are made;
3. Respect: individuals are treated with dignity and their rights are explicitly protected; and
4. Trust: authorities are benevolent, caring, and sincerely trying to help the litigants—a trust garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.
Now that you know what it is, is it important? It sure seems to be. An extensive 2005 study in the California state courts found that perceptions of procedural fairness were “the strongest predictor by far” of public confidence in the California court system. Simply, if litigants or members of the public perceived that the courts provided fair treatment in the aspects Tyler identified, their overall opinion of the court system was much more positive. This was true across different ethnic groups, across gender, and across income and educational levels.
In addition, procedural fairness plays an important role in improving compliance with court orders. Several studies strongly suggest that when litigants perceive that they’ve been treated fairly, they are more likely to comply with the court orders that follow.
For a useful introduction to procedural-fairness principles, three articles from Court Review, the journal of the American Judges Association, will do the trick:
[Steve Leben]
Procedural Fairness For Courts and Judges 