Views from the Bench, 1219 UTBJ, Vol. 32, No. 6. 12

Author:The Honorable Ryan M. Harris
Position:Vol. 32 6 Pg. 12
 
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Views from the Bench

Vol. 32 No. 6 Pg. 12

Utah Bar Journal

December, 2019

Observations of a Relatively New Appellate Judge

November, 2019

The Honorable Ryan M. Harris

It has been a little more than two years now since Judge Hagen and I joined the Utah Court of Appeals. Prior to that, through six years as a trial judge and thirteen years in private practice, I had enjoyed quite a bit of involvement in the appellate process, if only as something of an outsider: I had written briefs filed before the Utah appellate courts, I had argued cases in front of them, and my rulings as a trial judge had been affirmed and reversed and sometimes both at once. But despite this experience, the appellate process always remained somewhat mysterious, and there were things I wondered about. What do appellate judges do all day, given that they spend relatively little time in court? Why do appeals always seem to take so long? Is there really any rhyme or reason to the granting of permission to file interlocutory appeals? What is the jurisdictional relationship between Utah’s two appellate courts? Why do the appellate courts have staff attorneys working for them, in addition to law clerks? And is appellate judging really a better job than trial judging?

Even after two years on the (very quiet) fifth floor of the Matheson courthouse, I do not profess to have definitive answers to all of these questions. But I know more about these subjects than I did two years ago, and I pass along my thoughts to bench and Bar, for whatever usefulness they might provide, with one caveat: the answers to these questions differ, at least to some extent, depending on whether one is a member of the Utah Supreme Court or the Utah Court of Appeals, and my perspective, of course, comes from the court of appeals.

What Do Appellate Judges Do All Day?

From my time as a practitioner and as a trial judge, I am aware that there exists a perception, at least in some circles, that appellate judges don’t work as hard as lawyers or trial judges. I now know that this perception is categorically false. I think the inaccurate picture stems, at least in part, from the fact that most people just don’t know what appellate judges do all day. It is easy to understand what trial judges do all day: they are scheduled to be in court on most days for most of the day, and anyone can walk into a trial judge’s courtroom and see firsthand what kind of work that judge is doing.

The same cannot be said for appellate judges. On the court of appeals, each judge sits for oral argument no more than four times each month (usually only three), and each scheduled session of oral argument usually lasts no more than a couple of hours. In total, then, each of us spends no more than about six hours each month in court. The public has every opportunity to witness our work during those six hours – not only are our oral arguments almost always open to the public, but they are also livestreamed online so that anyone can listen in from the comfort of his or her home or office. But the vast majority of our work, at least until our opinions are published, takes place out of the public eye, and I suppose there exists some level of mystery about how we spend the rest of our time.

The first thing you need to know about an appellate judge’s workload is that appellate judges read – a lot. In a typical month, each judge on the court of appeals is assigned to be a part of twelve cases, four of which that judge will be (at least initially) assigned to author. So, for starters, that’s twelve sets of appellate briefs that need to be read, digested, and combed through each month. I do not ask my clerks to prepare bench memos or summaries of the briefs, and as far as I am aware neither do my colleagues; we read them ourselves, usually at least twice, cover to cover, prior to oral argument. In addition, we pull and read the primary reported cases that control each appeal; in some cases this is a fairly straightforward exercise, but in others this requires us to read and digest quite a number of cases. I can state with confidence that each one of the judges on the court of appeals puts in substantial preparation time on each case before each oral argument and comes prepared to engage counsel with questions about the case.

After argument, we meet together for an hour or two to discuss the cases on the day’s docket. These conferences are, for me, the best part of my job: I get to discuss and debate cutting-edge legal issues with two other really smart legal minds, and I am constantly surprised and invigorated by how much sharper legal thinking can get when multiple people meaningfully engage together in it. There is a reason American appellate courts are multi-judge courts, and you can be sure each appellate decision you read has been made better by having multiple judges review and examine the issues presented.

After conference, it is back to chambers for discussions with our clerks about how the conference came out, what direction the initial draft of the opinions are going to take, and so forth. In my chambers, one of my clerks almost always takes first crack at drafting the opinion, but (as my clerks are weary of hearing) I spend a lot of time editing and re-writing those drafts before circulation not only to make sure they are legally sound but also to make sure they flow well and are written in something resembling my voice. In a typical case, we will go through four or five drafts prior to circulation, and in some cases a lot more than that. As you can imagine, doing a substantive redline edit of a draft opinion can take a long time, more than a full day in some cases, depending on its length and condition.

In addition to editing and re-drafting opinions that our own chambers is working on (which, again, is typically four majority opinions per month), each of us spends a lot of time reviewing and commenting on draft opinions in cases on which we are members of the panel but not assigned to write the majority opinion. In a typical month, we are involved in eight so-called “panel” cases, so this means we review and edit an average of about eight such draft opinions each month. Some of these draft opinions are short, involve fairly clear issues, and take only an hour or two to review. But others are lengthy multi-part opinions on trickier issues, and reviewing and commenting on some of these opinions can take a day or more. I cannot stress enough how important a part of the process this is. I value the input of my colleagues very highly, and they almost always find things in my draft opinions that deserve additional analysis or re-drafting. I like to think my input on their draft opinions has the same effect: it makes our written work much better and more thorough than if we were simply composing the opinions on our own.

Sometimes, issues we raise with each other during our review of circulated draft opinions require additional discussion with the author or with the entire panel. Such post-argument consultation sometimes requires just a relatively brief chat, but on other occasions it evolves into a more lengthy discussion or even a full-blown re-conference. Our court is...

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