A practical guide to appellate judging.

AuthorCote, J.E.

    This article is designed primarily for two groups of people: lawyers or trial judges who are wondering whether to become appellate judges, and people who have recently become appellate judges. But observers of appeal courts may also enjoy a peek behind the curtain.

    I write this after twenty-seven years as a justice on three Canadian Courts of Appeal. (1) I have done three studies about how appellate courts and judges do and should operate in the United States and Canada. Two studies were for the Canadian Judicial Council. Some very able and very busy American federal and state appeal courts gave me an intimate view of themselves hard at work; I also have had some part in training new appellate judges. (2) I keep reading the reforms made by the two top English appeal courts. All that has shown the progress, development, and range of good ways to run an appeal court.

    The most helpful approach to summarizing appellate work is to describe the work of an individual judge on an appeal court, so I will do that here. I will emphasize problems and the most effective personal methods to solve them.


    1. In General

      A late colleague used to say of an appellate judge's lot that it's all indoor work and no heavy lifting. Readers probably guessed that already. But some appellate judges do have to travel (especially in the federal courts of appeals in the United States). And the volume of paper at times does literally involve heavy lifting. (3)

      In practice and in principle, an appeal court daily both corrects error and makes law. It also plays variations on those themes, such as clarifying or reasserting law, or promoting uniformity of results. One chief justice used to say that when he was a trial judge, he had been engaged in a search for truth, but when he went on the appeal court, he switched to searching for error.

      What about a typical state with two appellate courts, a supreme court which is supposed to make law, and an intermediate appeal court which is supposed to correct error? Even then, the two tasks overlap. Of necessity, each court does some of both. But there can be trouble when either type of appeal court fails to maintain a proper balance between the two different functions.

      What is the aim of appellate work? A judge on a trial court can often do much to produce or aid justice in individual cases, especially when no jury is involved. But on an appellate court, that is often harder to achieve legitimately and safely. The facts are usually fixed. An appellate judge may be tempted to tweak the law, to favor a party for whom justice in that case is just out of reach. But sad experience shows that in the long run, the effect of following that impulse often produces injustice for many future litigants. That long-lasting evil comes from a past effort to help one now-forgotten individual in his or her suit or prosecution.

      Hard cases indeed make bad law. (4) Sometimes sympathetic appellate judges do more harm than unsympathetic ones. Someone who wants to become an appellate judge should think about that. And someone who is already an appellate judge should never forget it.

    2. In the Trenches

      1. Reading

        Appellate work is usually intensely oriented to paper and reading, and produces much less oral interaction than does trial work. That is especially true of those appeal courts which deny oral argument for most cases, those which impose extremely short time limits for oral argument, and those which draw panels from judges who live in different cities. However it comes about, the orientation to paper shapes the judges' task several ways.

        The first effect is vital, to the surprise of a new appellate judge. Any appellate judge must be good at decisionmaking, paper handling, and time management. Even the onrush of paper (or emails) is considerable. If it backs up, it will flood the judge and his or her colleagues. What if an appellate judge cannot immediately take at least one useful step with each piece of paper or electronic communication reaching the desk or computer? He or she will soon drown in the in-basket, whether it is made of wood or of electrons. The judge's life will be a misery, and judgments from that judge will be poor tardy stragglers.

        Lawyers often lead a very different life. Some active litigation lawyers take many cases to trial. They settle fewer suits, instead delegating decisionmaking to judges and juries. They usually insist on all their rights at every interlocutory step. And some trial judges are happy to have a jury to make the serious decisions. Some very good trial lawyers like a personal duel such as cross-examination, but do not like long written briefs full of numbers and small details. All such people will need to change gears to succeed as appellate judges, or even to tolerate that life. (5) Conversely, a good lawyer who did little courtroom work, and was more at home with commercial transactions, will sometimes make a fine appellate judge.

        A general knowledge of the law and its principles and goals, and of how the social, commercial, and legal worlds really function, is very valuable. But more important than any knowledge are ability and attitude. A truly bad judge is not one who is ignorant of the law; it is one who is not even curious.

        They say that it's sometimes better to fill an important job with someone who thinks that he or she does not really deserve the position. That appointee will work hard every day to learn the work, to measure up to its demands, and to be worthy. If you become an appellate judge, try to fit into that mould; do not think that you can relax and be the big man or woman on campus simply because you have passed the entrance exam. Many modern legal systems put enormous powers and responsibilities into judges' hands. The public deserves their best efforts. Indeed many oaths of office expressly pledge those efforts.

        Much of an appellate judge's job is triage of one sort or another. That is so whether the court is richly endowed with law clerks and staff lawyers, or it is not, and whatever that court's tradition of just what work those clerks and lawyers do and do not do. Here are four examples of such triage.

        1. Scaling the Paper Mountain

          Many appeals unload on the judges a Matterhorn of paper or potential reading, including transcripts and trial exhibits. Usually one judge cannot day in and day out keep reading all that and still stay healthy (and have a personal life). Reading some of it carefully is vital, but reading most or all of it (beyond maybe some judicious skimming) is often highly counterproductive. One would think that good experienced lawyers would be quick to flag for the judges just what to read, indicating what is merely semi-relevant background or completely extraneous. But lawyers rarely do. This problem is especially acute when an appeal is supposed to be confined, one way or another, to questions of law, jurisdiction, or principle. Here even a court's law clerks or staff lawyers often have limited use, especially if they are the first people at the court to look at the material. Law clerks and staff lawyers are of more use when given specific tasks and directions by the judge. So the judge has to develop experience and initial methods to analyze lawyers' arguments, so as to locate which papers are important and more or less discard those which are not. Only then can the careful reading commence. But usually then the careful reading need not be unduly lengthy.

        2. Assessing the Necessary Investment of Time

          Next, the judge should have some idea of what types of appeals deserve the Cadillac wedding with lots of bridesmaids, an army of ushers, a consultant, a videographer, several acolytes, and a bishop, and for what types the standard chapel wedding suffices. (That distinction refers to any of a number of procedural streams or differences, including whether the case would benefit from oral argument, whether law clerks or staff lawyers help, or even whether the case should be directed to a different court.) The judge should be quick to spot cases likely to be sent by default down an inappropriate track--either permanently, or long enough to waste significant time and money--which could cause a risk of injustice.

        3. Assigning Responsibility for the Opinion

          Once the case is set on the right course, someone (possibly each judge assigned to the appeal) should develop some ideas about who should write the judgment, what form it should take, and at what stage it should first be drafted. For example, should any type of judgment or disposition be discussed before oral argument, or without any oral argument? Who should do the drafting? One judge? All three judges? One judge's law clerk? A staff lawyer? Sometimes the answer is determined by the procedural track chosen for the appeal, but not always. And frequently it is possible--though not routine--to treat an appeal differently than the track initially assigned would suggest.

        4. Developing a Sense of the Case

          Sometimes it is important to try to have some real feeling for a case even before oral argument commences. The judge may find that he or she should raise some aspect of a pending appeal before oral argument with the two (or more) colleagues assigned to decide it. And fairly often a judge should do more than merely read the briefs and the trial reasons under appeal. That way oral argument can make...

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