Building an appellate system worthy of a great nation.

• Author: Shepard, Randall T.

Speeches by Alan Morrison (1) and Paul Carrington (2) during this gathering suggest that, as compared to thirty years ago, the appellate courts of the nation face far fewer problems. Each of us will have to ponder over time whether that is really so or whether we have simply convinced ourselves that we are better off.

My assignment in closing this National Conference on Appellate Justice is to ask the question, "Where do we go now?" It has never been imagined by the organizing committee that this meeting would undertake to forge a plan of collective action for the future of America's appellate courts. Still, it is fair to say that these days together have helped shape our views about problems and opportunities, and that the people and the organizations who have put this meeting together, the Federal Judicial Center, the National Center for State Courts, the Institute for Judicial Administration, and the American Academy of Appellate Lawyers, have greater capacity to improve appellate justice than ever before.

TWO IMAGES OF APPELLATE COURTS

Our conversations here have demonstrated to me that participants hold very different ideas of how appellate courts can or should perform their assignment in the American legal system.

There are two competing images in the minds of lawyers and judges about how appellate courts function. One of those is the classic paradigm of an appellate court, mentioned yesterday by Judge Susan Graber. (3) It is a paradigm replete with the rituals of American justice--rituals as familiar as the filing of briefs or standing up at the beginning of court. The classic paradigm imagines that lawyers file a record of proceedings, and that judges read the briefs, hear arguments, discuss the case among themselves, and return to their chambers to prepare opinions.

The other image of appellate courts focuses on organic institutions that are constantly remaking themselves. In the course of that redesign, the people responsible for the institutions do not always share a consensus about what is routine and what is weighty, or what is a good shortcut and what is a harmful one. For example, some participants in this meeting have characterized direct criminal appeals as rather ordinary legal excursions appropriate for summary examination by staff and summary disposition by judges. Other participants have argued that the direct criminal appeal calls upon judges to exercise a high level of scrutiny because such cases involve the deprivation of liberty. The trial judge's view of this difference was nicely put by Judge Neil Wake, who referred to himself as a judge from an "error-creating court." (4)

THE CHALLENGE OF CANDID DISCUSSION BETWEEN LAWYERS AND JUDGES

Just before this meeting opened there was an orientation for all those who would be responsible for conducting and reporting breakout sessions during the conference. In the course of this orientation, one of the facilitators asked, "How will we get the judges to talk candidly about these matters?" It has seemed to me over the last few days that a more prescient question would have been how to induce lawyers, even first-rate lawyers at a meeting held hundreds of miles away from the courts where they regularly appear, to talk candidly to judges about various issues.

One discussion about the duration and frequency of oral argument illustrated this problem for me. At least a few judges in the room affirmed their commitment to the oral argument and then explained that their courts typically set the standard amount of time given to each side at five minutes. Contemplating the intellectual weight of such encounters, I recalled a statement by my friend Judge Mary Beck Briscoe, who once said, "I sometimes feel as if I've been involved in a judicial drive-by shooting." (5)

Wondering about the value of ten-minute arguments led me to think about the effects of arguments in my own court of last resort, where the usual time is forty minutes. It is more common than not that after oral argument some member of our court declares a change of heart about the outcome as a result of the argument. It is even more common that the decision is shaped in important ways by what the members of the panel heard in the courtroom. Put another way, the decision to affirm or reverse may not be altered by the argument, but the jurisprudential ground, and therefore the precedential value of the dispositional opinion, frequently changes in important ways as a result of the discussion in open court.

It was difficult for me to imagine that any lawyer in the discussion I have just described really believed that five minutes was an appropriate time for this intellectual exchange to occur, but none elected to challenge the judges who thought it adequate. Only other judges did that.

Likewise, the judges in the groups in which I participated believed that the internal practices under which their courts made decisions were well...