The latest Maine Bar Journal (Fall 2015) has been issued, and included is another set of Judge Hornby’s “Fables” – short lessons in the Aesop mode. These are always enjoyable, thought provoking, and helpful. There are a few this time relevant to appellate practice. 1. The squirrels’ opinions. The gist of this fable (and please forgive me Judge Hornby if I get this wrong, and I know much is lost having to paraphrase quickly) is that appeal opinions are getting longer because appellate judges are getting busier and relying on their clerks more. Because of this dependence, the judgment gained by the judges from years of experience, as opposed to newbie clerk focus on the case law and the need to spell everything out, is reflected less in the opinions. The result, aside from length, is that impracticalities may result. (He lists as the moral: “Practical experience and insight should trump analytical brilliance and grunt work.”)
One lesson I see here for appellate practitioners is, as I’ve mentioned many times before, the importance of communicating unintended consequences to the appellate panel. The clerks may be young, but you aren’t (necessarily), so you need to use the judgment you’ve gained in your experience over the years in advancing your arguments.
2. The destruction of the porcupine. The gist of this fable is that when the other side has been eviscerated, there is nothing to be gained in piling on. (The moral is “Sometimes it is better to say less.”) This is very true, and again, is sometimes learned by hard experience. I had an oral argument before the Law Court when I was fairly young, and the argument was going absolutely swimmingly for me – they had destroyed the other side. But I didn’t just sit down, but kept yakking, getting more wrapped up in my rhapsodic speechifying, until then-Chief Judge Wathen basically said save it for a jury.
3. The crow’s cold record. The gist of this fable is that the record doesn’t always portray the whole story. The moral listed is “Never trust a cold or surprising transcript, especially when the advocates on appeal were not present at trial.” The examples he gives is that there was a cough and the reporter missed an important “not” in testimony, and the trial judge made a reference to “foggy” that on a cold record could be read as disparaging one side, while if you were there, it was clear he was referring to the weather as he looked outside.
There is a very important lesson to be learned from this fable. The appellate court will only have the cold record, and is only supposed to rely on that record. If the transcript is incorrect, then it needs to be corrected within the time allowed. If a trial judge says something that can be misconstrued, then that needs to be fixed by somebody contemporaneously, making it clear on the record that the judge is referring to weather. The lesson isn’t that appellate judges shouldn’t rely on the record, or that trial counsel should argue the case on appeal. Rather, it’s to get an appellate lawyer, who understands what a cold record looks like, involved at the trial level, at the time when these things can be fixed. If only the trial lawyer works on an appeal, he or she sometimes has an impression of what is happening and has happened – whether accurate in the real world or not – that isn’t supported in the alternate universe of the Cold Record. That impression then obscures what arguments should be made in this alternate universe, where only the record matters. So if there is any possibility of an appeal, there’s something to be said for getting a translator – the appellate practitioner who understands Record-Speak – involved, focused not on how to win over the jury, as is the trial lawyer, but rather on what the record is going to look like and whether everything has been preserved.
I have personally noticed that as fewer and fewer trials take place, fewer lawyers at the trial level are minding their ps and qs on preservation issues, and they are spending less time thinking about how the trial needs to be framed for purposes of appeal. The art of jury instructions, for example, may be getting eroded through lack of practice. Making sure that the important parts of chambers discussions are recorded can also be critical. No one wants to litter a trial with objections, but some have to be made, and in a way that an appellate judge who wasn’t there can understand. Hence, all the more reason, if a case is actually going to trial, to work with an appellate practitioner who, because they live with the consequences of lapses in these areas, should be sensitive to getting these things right at the trial level. It may be that the trial lawyer will sacrifice some argument on appeal for the sake of trying to win over the jury or not antagonizing the trial court – but that decision should be a conscious one.