The latest edition of The Journal of Appellate Practice and Process is full of interesting and useful articles. I want to focus here on the one by Judge Lipez, "To Lobby or Not to Lobby: That Is an Important Question," not only because it's a good article and helpful to appellate practitioners, but because it relates to some of the points made in the last AAAL conference as to how appellate panels make decisions.
Two points the experts noted in the AAAL conference (upon which I recently blogged) are: (1) judges tend to switch their tribe over time, as they sit on the appellate bench; and (2) once a judge (or anyone in general) writes his or her view down, it's harder to get them to move off of that position. On the first point, the research shows that what the other judges on the bench think, and arriving at consensus, generally becomes more important to an individual judge over time, basically because the other judges become that judge's new tribe, and that tribe is somewhat isolated, which heightens the desire of all members of the court to be in sync with their brethren. On the second point, the lesson is even if the drafter is purportedly just writing something tentative down for purposes of discussion, subconsciously the drafter tends to become the advocate for the position.
With these nuggest of wisdom in mind, let us consider Judge Lipez's article. He explains why he thinks "lobbying" – defined as a one-on-one attempt to persuade another colleague that his position is right – is, generally speaking, a bad thing. The thrust of the explanation is that this kind of lobbying leads to factions and hard feelings that undermine the collegiality of the group. Hence, any efforts to persuade should be circulated in writing to the group as a whole, in memos to everyone. (The exception is when the decision is so important to the judge that he or she is willing to cast the general rule aside.)
As a threshold matter, the article should be read by anyone appearing before the Maine SJC or First Circuit, because he explains the decision-making process – when and how judges communicate with each other. Folks unfamiliar with the appellate process generally think that appellate judges, whether on the Supreme Court or elsewhere, talk to each other about an appeal a lot more than they actually do. How the actual, somewhat silo-ed process, affects what the practitioner should say to them, and how to say it, is something each practitioner should ponder.
Beyond that, meshing our nuggets of wisdom from the AAAL conference and from the article, Judge Lipez's focus on the importance of collegiality is spot on with the first AAAL nugget. The fact that judges care a lot about what their colleagues think and are highly motivated to produce consensus decisions is something again you should think about when arguing an appeal — what sort of compromise positions can you live with, what absolutely doesn't have to be decided in a case, and what sorts of horsetrading options exist should a panel be of different minds are things you need to consider in making your pitch to them.
The second nugget of wisdom raises more subtle considerations. Whether you think this is a bad thing or a good thing, there isn't going to be a point in time when the judges are all sitting around musing about your case and chatting with each other about the merits and weaknesses of any particular argument. They basically only try to persuade each other, if they all are not all in lockstep from the get go (when they first communicate their position to each other in their vote after argument), through written text. The AAAL speakers were saying that it's harder to persuade at that point. What are the ramifications of this fact? Does it mean that a judge who can express his or her view the most eloquently on paper has an advantage? Does it affect how the writing judge presents in the first draft of any opinion? How does this fact — if you believe it to be true in the first place - affect what advocates before the court should present their case?
That's it for now. Perhaps in the upcoming blogs, as the year closes shop, we'll take a look around for the bigger appellate moments for Maine in 2013. One big one is Justice Levy seems to be successfully making his way through the Congressional thicket for confirmation as our next federal trial judge, so a big congratulations to him! This will be the federal court's gain and the SJC's loss, and we wish him well in his new gig.
Happy holidays to all.