So as previewed, let’s summarize highlights from the April conference of the American Academy of Appellate Lawyers in Santa Fe.
The conference opened with a nice welcome from the Chief Justice of the New Mexico Supreme Court, Barbara J. Vigil, who spoke about the importance of the appellate practitioner. (hear hear!) The general thrust of her remarks was that appellate lawyers represent the individual, but are also the agents of change – they are the lawyers communicating to the court the social changes requiring policy adjustments and advancing the general progress of the law.
Next, an AAAL task force on oral arguments gave a report – you can check out the March draft that was discussed on the AAAL website http://www.appellateacademy.org/ (right side under “latest news”). Goals include explaining to courts why oral argument is important and providing concrete recommendations in the teeth of shrinking opportunities to be heard (the report has some statistics showing how fewer arguments are being allowed in the federal Courts of Appeal).
We are lucky in that the First Circuit gives almost every non-pro se, non-social security case oral argument, and the Law Court also holds argument on most substantive cases, so that some of the recommendations discussed might not be applicable here (e.g., improving the process by which oral argument is requested). A few suggestions that might have some relevance, however, include automatically giving pro bono counsel oral argument (the Ninth Circuit has such a program), and having focus letters issue before argument, in which the court indicates some of its points of interest. As to the latter suggestion, when I’ve discussed this with some judges, they note logistical problems in getting a panel together to identify such points prior to the argument. Understood. But still, in this world of instant communication via e-mail, if there is any feeling among the judiciary that some oral arguments are lacking because the attorneys appear unprepared to address the questions that the panel has, then even a very informal heads up very shortly before argument could be very helpful. The total number of appeals basically is going down in both the federal and state systems, so maybe time can be squeezed in for this type of experiment once in a while. And at the trial level, with only one judge, why not send out an email with a heads up of what the judge would like to talk about?
Another suggestion which I’ve heard before is to permit junior lawyers to argue in cases that wouldn’t normally get argument. This suggestion has been voiced by judges, so at least the ones talking about this are willing to put in the time. It’s getting harder and harder for younger lawyers to get argument experience, and the only way you learn is practice, so this is one avenue that some federal district courts are exploring right now. This suggestion triggered a lot of discussion as to viability and client understandability.
Next time, we talk techie.