Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals

• Publication year: 2016

Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals

Stephen Louis A. Dillard

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Special Contribution

Open Chambers Revisited: Demystifying the Inner Workings and Culture of the Georgia Court of Appeals

by Stephen Louis A. Dillard^*

I was sitting in my cluttered but comfortable office, preparing for what would ultimately be my last hearing as a lawyer, when the phone rang. On the other end of the line was Governor Sonny Perdue's executive assistant: "Mr. Dillard, do you have time to speak with the governor?" I did, of course. And less than two weeks after that brief but life-changing conversation with Governor Perdue, I was one of Georgia's two newly-appointed appellate judges (and the seventy-third judge to serve on the court of appeals since 1906).¹

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Over six years have passed now, and during that time a great deal has changed at the court of appeals. Indeed, after spending less than two months as the junior judge, five additional judges were either elected or appointed to the court in just over two years.² Then, in April 2015, the Georgia General Assembly enacted legislation (House Bill 279)³ expanding the court of appeals from twelve to fifteen judges (as of January 1, 2016),⁴ which Governor Deal signed into law just a few weeks later.⁵ In other words, more than half of the court of appeals turned over in a very short period of time; and this has undeniably impacted the nature and personality of the court in a number of ways. But one constant remains: Much of what we do as appellate judges on the court of appeals is shrouded in mystery. I am not entirely certain why this is the case. It could be that (until recently) the culture of the court over the years has been for the judges to be fairly tight-lipped about our internal operating procedures. It may also have something to do with the practice of Georgia's appellate courts hiring permanent staff attorneys. Thus, unlike the federal judiciary, we do not send a wave of law clerks out into the workforce every year with "insider knowledge." But regardless of the reasons for its enigmatic character, my hope is that this Article will continue the process of demystifying some of the inner workings of Georgia's intermediate appellate court.

This Article, then, is distinctly personal in nature. Suffice it to say, my perspective of the internal operations of the court of appeals is just that: mine and mine alone. And while I am certainly hopeful that the insights and observations I offer prove to be of some use to the bench and bar, they should in no way be understood as being universally accepted or endorsed by my distinguished colleagues. The reader should also understand that this Article is not intended to be academic or comprehensive

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in nature. It is meant to give practical advice to lawyers who regularly appear before the court of appeals on unique aspects of the court's internal operations, or, at the very least, provide practitioners with a useful perspective on certain practices from the viewpoint of a sitting appellate judge.

I. The Court of Appeals Caseload, The Two-Term Rule, And "Distress"

It has been said before, but it bears repeating: The Georgia Court of Appeals is one of the busiest intermediate appellate courts in the United States,⁶ and the court's considerable caseload⁷ is only exacerbated by the two-term rule mandated by the Georgia Constitution, which requires that "[t]he Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court's docket for hearing or at the next term."⁸ This constitutional rule "imposes strict and (almost) immutable deadlines upon the merits decisions of [Georgia's appellate courts],"⁹ and the draconian remedy for the failure to abide by this rule is "the affirmance of the lower court's judgment by operation of law"¹⁰ (something that has never occurred in the history of Georgia's appellate courts). It should come as no surprise, then, that many of the court's operations are reflected to some degree by the pressure placed upon the

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judges and staff by an extremely large caseload and the two-term rule.¹¹ For example:

• Unlike many appellate courts, the court of appeals randomly and immediately assigns each case docketed to a judge for the purpose of authoring the opinion.

• There is currently no formal conferencing between the judges,¹² regardless of whether a case is scheduled for oral argument.

• Oral argument is entirely discretionary,¹³ is only granted in about one-third of the cases in which it is actually requested by the parties, will rarely be rescheduled due to personal or professional conflicts,¹⁴ and is not permitted for "applications or motions."¹⁵

• There are strict time limits for oral argument, strict page limits for appellate briefs,¹⁶ and strict deadlines for filing motions for reconsideration, interlocutory applications and responses, and responses to discretionary applications.¹⁷

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• The court frequently remands a case when there has been a significant delay in transmitting the transcript or some other part of the appellate record.¹⁸

• The court is often unable to hold or delay consideration of a case involving an issue under consideration by the Georgia Supreme Court or the United States Supreme Court.¹⁹

• The court is often unable to give multiple extensions of time to file an appellate brief.

• The court is often unable to hold a case when there are ongoing mediation or settlement efforts.²⁰

• Cases that are ultimately considered by a nine-judge or fifteen-judge "whole court" (discussed infra) are not re-briefed or re-argued, and the parties are not informed that their case has moved beyond the consideration of the initial three-judge panel until the court's opinion is published.

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• During the final month of a term (which, as explained infra, the court refers to internally as "Distress"),²¹ the judges are extremely focused on circulating their colleagues' cases and are often unable to spend as much time as they would like reviewing those cases (while still spending as much time as is needed to thoughtfully consider the merits of each case).

• In the rare cases in which the judgment line "flips" after a motion for reconsideration has been filed and granted, the losing party may be effectively deprived of the opportunity to file a motion for reconsideration from this revised decision.²²

The internal pressures placed upon the court of appeals by the two-term rule culminate three times a year with the constitutional deadlines for the December, April, and August terms.²³ Indeed, while the court remains busy year-round, things get especially hectic the month before these deadlines—a time period we refer to as "Distress." Any opinion that circulates during this period is embossed with the attention-getting "DISTRESS" stamp in bright red ink, and is addressed immediately by the judges charged with considering the merits of that case. As my colleague, Presiding Judge John J. Ellington, is fond of saying, "Distress brings with it great clarity." And this is absolutely true. Our Distress periods seem to fly by, and there is simply no delaying the inevitable. The judges have to make a decision in each Distress case by the deadline, whether we like it or not. And in most cases, the two-term rule works perfectly and (no doubt) as intended. But in a handful of cases each term, I am reminded (sometimes in rather stark terms) that the tremendous efficiency brought about by the two-term rule²⁴ can come at a steep price in especially complex cases that—notwithstanding every effort to resolve those cases at an earlier time—are decided during the waning days of Distress. Thus, while I am a strong supporter of the two-term rule, I also

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firmly believe that litigants are not well served when judges do not have the time they need to thoughtfully reflect upon the merits of an appeal decided during Distress. My hope is that the forthcoming changes to the court's operating procedures (as outlined in this article) will begin the process of addressing this problem.

In any event, what lawyers should take away from the foregoing discussion is that the court of appeals continually operates under enormous internal pressures, and that it is absolutely crucial for practitioners appearing before the court to expend a considerable amount of time and effort preparing their appellate briefs and oral-argument presentations with these pressures in mind.

II. Briefing Tips

A great deal of ink has been spilled in recent years offering lawyers advice on crafting the perfect appellate brief, and I will refrain from rehashing these important but all-too-familiar pointers in this essay.²⁵ Instead, I will offer just a few suggestions to lawyers who regularly submit briefs to the court of appeals.

First, consider giving the court a roadmap of your argument at the outset of the brief. Specifically, I strongly recommend including a "Summary of Argument" section, even though our rules do not currently require it.²⁶ I am amazed at how many times I read briefs that only get to the heart of the argument after spending ten to fifteen pages recounting largely unimportant background information and procedural history. Get to the point quickly. You do not want our judges and staff attorneys reading and re-reading your brief in an attempt to figure out the basis (or bases) of your client's appeal, especially given the severe time constraints placed upon the court by its heavy docket and the two-term rule.

Second, and I cannot emphasize this enough, be generous and precise with your record and legal citations. The quickest way to sabotage your appeal is to fail to substantiate legal arguments or key factual or procedural assertions. Court of Appeals Rule 25(a)²⁷ requires that appellant's brief, among other things, "contain a succinct and accurate statement of . . . the material facts relevant to the...