On Appeal: Courts, Lawyering and Judging.

AuthorOakes, James L.

Frank Coffin has done it again. With his The Ways of a Judge(1) in 1980 he shed light on the subject of judging - particularly federal appellate judging - for laymen and lawyers, for law students, and for those in journalism and politics. With his new On Appeal,(2) Judge Coffin has shed more light and made some new points. In addition to writing in understandable, sturdy New England prose for the layman or the lawyer who is not regularly engaged in the appellate process, Judge Coffin - perhaps pointedly, perhaps by accident - has directed this new work at his fellow judges, at least a good portion of it. As Judge Coffin quite openly suggests in reference to oral argument, "By their questions and comments to counsel, judges telegraph their concerns and preferences to the other judges. Oral argument is really the first stage of the conferencing among the judges."(3) As one reads, particularly in Judge Coffin's chapters on "Collegiality,"(4) on "Judging Appeals,"(5) and on the "Future,"(6) it becomes clear that he is talking to his fellow appellate judges across the country and to those district judges who occasionally sit on the court of appeals. While, candidly, I did not expect to receive that many insights into our art - it certainly is not a science - of appellate judging, I was pleasantly otherwise surprised. I also received some new insights into the judge/law clerk relationship with which I thought I had long since fully acquainted myself.

But, first things first. The structure of the book is fairly simple. Chapter One introduces us to a typical "Day in Court" - a typical day in the First Circuit courtroom, with one en banc case and half-a-dozen other civil and criminal cases. Chapter Two gives us the world picture by discussing the civil law appellate tradition - quite different, of course, from our own, as in other countries many issues on appeal are heard de novo. The English tradition and the overall United States tradition, as the Judge points out, are in a state of flux. A historical background of appellate justice is properly relegated to an appendix. In Chapter Three - pointedly titled "The State-Federal Court System: `One Whole'" - the judge, with the help of charts, numbers, and analysis, puts the federal courts in their appropriate complementary rather than primary place, of which more later. Chapter Four tells us about "chambers," both of what they consist and a little of their inhabitants, the "family," namely, the secretary and law clerks; of this, more later also. Chapters Five through Eight take us through the appellate process, from the lawyer's office to briefs to oral argument (i.e., "Conversing with the Court") to and through the judges' conference. Chapters Nine, Ten, and Eleven are devoted to opinions, including organizing the workload in doing an opinion, working with law clerks, and working with one's fellow judges. Chapters Twelve, Thirteen, and Fourteen are devoted to the broader issues of judging appeals and how we go about deciding cases: the quest for legitimacy, sailing in familiar waters - that is to say, the generality of cases, those often decided without disagreement among judges "of even widely varied social, economic, and political backgrounds,"(7) and finally dealing with those cases in which ideology may be involved - that is to say, navigating in the "uncharted depths" of judging. The final chapter of the book is devoted, quite properly, to the future.

So much for structure - a structure nicely leavened, I might say, with one drawing per chapter amusingly done by the author's artist-designer son Douglas; every judge needs such a member of the family, one who can shed light, perhaps a little impertinently. Not having had one myself, I have had to rely on the all too occasionally impertinent law clerk who can keep us all in stitches with her drawings, her imitations of lawyers and judges alike, and her one-liners.(8) I would rather talk about the things the book does, and perhaps even mention one or two that it does not do.

First, and most important, is Judge Coffin's Chapter Three, to which he alludes from time to time, emphasizing the "One Whole" language in The Federalist No. 82, where Alexander Hamilton - following up on the analysis of No. 81 - foresaw that the national and state systems of courts would be just that: one whole.(9) Judge Coffin points out that the realms of the dual-court system "intersect and overlap in a number of important ways."(10) Numerous federal cases, for example, involve or turn on state law; even federal constitutional concepts such as "liberty" and "property" turn on state law expectations, some would say to too great a degree.(11) He points out that it is in state courts that by far most of the nation's litigation is decided, with the huge size of the state court component seldom being appreciated. Chief Judge Judith S. Kaye of the New York Court of Appeals made this point in the December 13, 1994 edition of The New York Times in an op-ed piece entitled Federalism Gone Wild.(12) There she said that more than ninety-seven percent of all litigation is handled by the states, pointing out that under current trends, while more than one million cases a year will be filed in the federal system by the year 2020, more than one hundred million will be filed in the state systems. Judge Kaye took to task the recent draft of the proposed long-range plan for the federal courts released last year by the Committee on Long Range Planning of the Judicial Conference of the United States(13) for seeming to suggest that "as long as the whole system is in trouble, why not at least save the Federal courts?"(14) She concluded, "A solution that eases the burden on the Federal courts without taking into account the effect on the state court system is no solution at all."(15) Judge...

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