Kabuki Theater and the federal judicial conference


I have just returned from the Judicial Conference of the District of Maine, held Thurs-Friday at the Samoset in Rockland.  Budget cuts eliminated conferences at the circuit court level (strangely, those held in Puerto Rico seemed to be the most popular.  The one held at the resort with the swim-up bar was a particular hit).  Not unnaturally, the district court conference focuses on district court issues, and so its content is less directly pertinent to appellate practice.  I nevertheless find the presentations useful if only because they start me thinking about whether and how much of of what I’m hearing  can be transferred to the appellate level.   

Friday morning, for example, Decision Quest gave a presentation on meeting juror expectations.  It focused primarily on how to present information most effectively through slides, videos, power points etc.  Here’s some of the information I found food for thought.

1.  While the focus was on jurors, presenter Arthur Patterson indicated that the same general priniciples upon which he was expounding applied equally to judges in their factfinding.   Now appellate judges are not factfinding, diminishing the applicability of his points; but the general scope of the presentation was how to present a lot of information in a simple and attractive way, which is a useful point at any litigation level. 

2.  The presenters’ research indicated that everyone is basically plugged into the internet these days, with the generational divide diminished.  I think this conclusion is sound.  There seems to be a perception that appellate judges are aging Luddites sitting at home by the fire with their quill pens and are the last to accept technology, but I don’t believe it, for many reasons.  First, another point Prof. Patterson noted was that internet use is highest in rural areas.  If you live in Maine, getting connected is very useful, and I don’t think judges are impervious to this.  Second, I think the age divide is nonsense, and I will use personal experience to illustrate.

My husband and I subscribe to the New York Times, and we like to read it every day.  We can read either the hard copy that shows up in our mailbox (or the vicinity) or on line.  I like to read the hard copy, because I find the web site hard to navigate.  My husband, however, likes to read on line.  He so prefers primarily because, as his eyes age, it’s easier to read and he can jack up the font.  So even if one makes not necessarily true assumptions about the ages of appellate judges, the generalization that older people use the computer less I don’t think washes – technology can actually have its advantages as you age.  When you add to this that the delivery of my paper is at times quixotic and too late for me to read before work, and the web site version is updated more often, it’s clear that even I must get with the program and learn to navigate the web site. 

In sum, I think that the appellate courts will be just as welcoming of technological advances as are lower courts and there is no generational divide on this issue, as long as any proposal is clear and makes sense in the appellate context.  Appellate judges may use technology differently than Generation Y or Z — these judges may not be updating their facebook entries every day or whooping it up on their wiis — but it’s just wrong to think that they are living in the 19th century (except maybe Justice Souter).

I have some ideas as to what simple technological changes might make sense and be proposed — fodder for a later posting.

3.  The research indicates that the most important attribute for an expert was style, not credentials.  Also, the entire thrust of the presentation was the importance of packaging.  There are aspects of the points they were making that I don’t think translate to the appellate level because the audience differs.  For example, jurors are being brought into a situation foreign to them; it’s all new and different and a one-time or infrequent event.  Appellate judges, however, are dealing with the same process over and over, and concerned with efficiency.  To me, however, this doesn’t make style less important – it just means style must address different concerns. 

For example, one point they made was the importance of mixing up media, to keep juror interest.  In contrast, I think it’s very important in the appellate context to keep inside the box; in order to facilitate the court’s ability to process information quickly, I don’t think trying novel approaches just for the sake of novelty makes sense.  To me, the goal is to make the best and most efficient presentation within the understood strictures of the appellate process.  Again, this doesn’t mean style is unimportant – it just means that the universe in which you act is much smaller. 

Hence, my allusion in the title of this posting to Kabuki Theater.  Trials have many moving parts.  On appeal, however, the record is closed and there is basically the brief and the argument.  There are many rules about what the brief should look like – color, contents etc.  So, in some respects, trials are like free(r) theater, with many more options and variables.  In contrast, appeals are like Kabuki, with fewer variables and lots of rules. 

In some ways, having less room to wander about means style is even more important, because everything you do is magnified.  When the primary focus is the brief, every little thing in that brief matters.  So, for example, if someone makes a typo in one of many filings at the trial level that the jury doesn’t even see, the importance of that boo-boo diminishes compares to a typo in an appellate brief.  I know that when I was a young associate I was a little mystified why the partner would get so crankly about a bitsy typo in a brief — I was thinking great constitutional thoughts, and making brilliant arguments, and wasn’t that more important than whether I used the right version of "principle" or "principal" in a sentence?  Now that I’m that cranky partner, I of course understand what the big deal is, and it seems more and more important to me that the brief look precisely correct.

The lesson I drew from the presentation, therefore, was that, because appellate lawyers work on a very restricted stage, it is even more crucial that they make sure that their "style" is right.  The brief needs to look good, and one must follow all the rules.  A good appellate lawyer makes the reader’s job as easy as possible – e.g. always have a record cite after every sentence in the statement of fact; always use pin cites for the case cites and almost always include a parenthetical, with quotes.  The packaging of a brief and an oral argument at the appellate level is just as important as packaging at trial.  It may be more nuanced and respond to different audience concerns, but a good appellate practitioner needs to ask the same fundamental question as the trial lawyer:  am I conveying this information/argument in the most precise and easy to absorb manner for my audience, eliminating any distractions?

The next presentation I went to was a forum for the magistrate judges — what I gleaned for appellate purposes from that session to come in the next entry.