Thursday I attended the MSBA's Bench-Bar conference at the Augusta Civic Center (two straight days driving up from Kennebunk and back – good thing I have those Icelandic punk rock cds to keep me away on the road).
The conference was excellent – 17 Superior Court Justices participated. Only two (Justices Warren and Horton) were unable to attend. They did a really good job of spreading the wealth, so no one person dominated the presentations.
After the introduction from Bill Robitzek, Chief Justice Humphrey gave a half-hour introduction about the nuts-and-bolts of how the Superior Court system operates. Given the times, this couldn't help be an explanation of how bad things are money-wise – and it's only going to get worse. I will spare you the details, but given the latest budget shortfalls, unless you want to see some real palpable changes in the system, everyone's going to need to engage in some energetic resistance to looking to the courts for further cuts.
This was followed by a session from the newbies (Justices Cuddy, Jabar and Murphy) about what struck them as to the differences from their previous lives as small firm practictioners and the life of a Superior Court Justice. They focused on the isolation, stresses (how they differed from the stresses of practice) and the change from being advocates to the judicial role.
Next came a session with all of the Justices identifying the gems they had seen in their courts — the best closing, the best cross of a nonparty witness, that sort of thing. This was great because it was very concrete, concise, and got all the Justices involved.
After that, there were breakout sessions, and I attended the session with Justices Brennan, Cuddy, Delahanty, Marden, and others on administrative appeals and motion practice (primarily summary judgment and discovery).
There was also a session on settlement conferences led by Justice Crowley and a session on juries that, given my appellate focus, I didn't attend. But what did any of this conference have to do with appellate work, Cathy, you may ask. Except for the brief focus on administrative appeals, what could I glean of any use from trial judges?
Lots. As any regular reader of this blog understands, you can derive lessons for appellate practice from every human act and experience. But here, particularly with the "gem" section, the themes the Justices reiterated resonate at both the trial and appellate levels. The common thread of all the gems they cited was equally applicable to appellate work: focus, candor, and he need to, tell an active, unified story.
For example, the Justices found the most effective openings and closing were short and simple (especially when coming after a windbag on the other side). The opening stresses a point, and the closing goings back to it, tying things together. If you talk second, make your presentation responsive to the first – don't just give your pre-packaged speech. On exhibits – make them easy to see and absorb and don't interrupt the flow. On direct – don't overreach - acknowledge your weak points and hit them head on. On cross – this is where knowing more about the entire record makes the most difference. Pick your battles, hit a few points hard and sit down. Don't buy into the other side's structure, so you avoid just reinforcing the direct. Listen and make your next question flow from the previous answer. Don't try to be anyone's friend or get too familiar; instead show respect. Don't use an economist unless you have to, and if you do use one, use them ,for the basics, not for overreaching. Nonverbal communication is very important – everything that your audiences sees at any time. In your written advocacy, make it easy to absorb and build trust; don't be snarky. In a non-jury proceeding, follow up on what the Justice has previously shown an interest in; make your points in a neutral appearing way at least in the beginning and build to your more argumentative tone.
Aren't these all lessons equally applicable in the appellate sphere? There were lots of other nuggets, but hey, go to these things yourself and get the CLE credits.
Strikingly, the one big point to which everyone's presentations seemed connected was simplicity — the same point I was making in my last blog entry. A wise practitioner strips away everything that isn't absolutely critical – then sees if she can cut some more. Everything you do should be geared to make your (not too many) points easy to understand and absorb. Lots of what needs to be explained isn't simple; you need to figure out how to break down the complicated into easy to digest pieces.
We are very fortunate to have a set of very sincere, friendly and articulate Superior Justices.Working under some very challenging conditions, I was struck by how there really isn't a mean spirited one among them. When they pick up one of my briefs late at night after a full day, I want it not to be with dread, but with an understanding that this document in front of them is as good and concise a piece of work that I can do. When I argue in front of them, I want to make sure I focus on answering their questions, not making a speech that isn't going to help them decide the case. My job is to make their jobs easier.
