As I mentioned, I recently attended an appellate conference in Ottawa (a lovely city). As always, the conference (of the American Academy of Appellate Lawyers) was full of very interesting info. What follows are some of the things I learned up north.1. Hey you!What do you call a member of the Supreme Court of Canada? Not a simple answer. Until about 10 years ago, the Justices were my lord and lady. That, the court then said, was too hifalutin. So they tried out your honor, but no one liked that. The Court said ok, just call us Justice X or Y; but the problem is that some people arguing in front of the Court don't know the individual justices. So now it's "sir" and "ma'am.' Yikes! 2. Can't we all just get along? We all watched a Supreme Court of Canada argument. The lawyers, per protocol, called the other counsel "my friend." I thought that was a nice touch. The questioning and tone was also very very cordial and low key (I watched a murder case so we know at least some Canadians aren't completely nice and violence free. But the lawyers and judges certainly are very gentle folk.)In the "everything is relative" category, apparently there is some perception in Canada, despite what seems to us very collegial and polite discourse, that there is a crisis of civility among the bar, although the Canadian practitioners on a panel discussing this issue said their personal observations didn't support this perception. The prosecutor on that panel said that the appellate bar, where she concentrates her work, is very civil, and noted that a trial lawyer was recently sanctioned in Ontario by the Law Society for uncivil behavior that might be perceived as relatively mild in our world down under. so they keep a very close rein ontheir practitioners.Interestingly, one senior member of the Canadian bar on this panel said that things weren't always so civil, but a single, monumental appellate judge was so cordial and nice to all practitioners that he basically changed the face of the bar. This squarely supports my previous observations as to the huge impact a nice judge (like Judge Coffin or Patricia Wald of the DC Circuit) can make on the whole legal community, making it a better place to live.There is a lovely practice in this bar that the day after a criminal trial verdict, the lawyers on both sides go to lunch together. Notably, one panel member said that to the extent that there is "chippiness," in attitudes, it's in the civil, not criminal bar.3. Nothing but timeThe appellant got an hour to speak. This was in an appeal of right (more on that to come), which would get 15 minutes in the Law Court and 15 tops in the First Circuit. The parties get even more time in the provincial courts of appeal — they can get a day (yes, you read that correctly, an entire day) each side, like in the old Daniel Webster times. One panelist noted that this generous allowance of time comes out of their British-based traditions, where the brief was practically non-existent, and the argument was everything, which approach extended as recently as into the 1970's. Until then, there were no time limits AT ALL.Now the brief is more important, and time limits are imposed, but, as noted, these limits are very generous compared to us.4. I'm ready for my close up
The arguments are taped and put on a public tv channel like our C-span a few weeks after argument, so you can watch them at 2 in the morning or whenever they pop up. They are also posted on a web site for browsing and viewing whenever you want.Their tv system is quite slick, with shots back and forth – not just one static camera (although the set up is completely invisible). They also have four big flat plasma tvs for the audience in the relatively small court (89 seats) to watch, which I thought was very nice – you got to see the faces of the lawyers close up as they argued, and close ups of the Justices asking questions.5. RobesIf you are on tv, you've got to look good, right? No wigs, but the robes are very nice, not just the one piece for judges in the U.S. The judges and the lawyers all wear a three-piecer – a black robe, with a white dickie, like Justice Ginsburg wears, and a long waistcoat. It's the waistcoats that make the whole ensemble look so snappy. The judges also have red ermine trimmed robes they take out for ceremonies (and maybe playing Santa Claus). 6. ComputersEveryone has one, including on the podium. It made all the specific citing in the argument to record very efficient. A long line of clerks (each justice gets three) also sat there with computers, and I am told that there is messaging back and forth from the judges to their clerks during the argument. Let's hope they aren't just playing Word with Friends.7. Order and pieces of argumentAs mentioned, we watched an appeal of right case, which constitutes only a small portion of the otherwise discretionary docket of the Court. If a criminal defendant gets a dissent on a legal issue in the intermediate appellate court (3 judges on the intermediate panel, so a 2:1 decision), there's an automatic right to appeal, on that issue only. In this case, the court heard his lawyer's one-hour argument, then left the bench for about 15 minutes, then told the prosecutor that they would like to hear from her, but only on one issue. She talked about it, apparently for as long as she wanted (maybe 15 minutes). Then the Court asked if the appellant wanted any rebuttal, and he took about two minutes (again no rush, his choice), and then the Court said it was reserving judgment and took a break before the next case.We were told this is typical, and it's all quite flexible – often in the appeals of right the Court doesn't hear anything from the appellee, and even rules from the bench, saying written opinion to follow, or for the reasons cited below, or gives a short oral recitation of the reasons. 8. AmiciThe equivalent of amici are intervenors (no standing issues). Often in the discretionary cases, groups line up and seek leave to participate, with many allowed, and many of them allowed to argue, given 10-15 minutes each. A lawyer who does these arguments in a big firm said these intervenor arguments are often done pro bono – in return for providing a free representation on an issue of public interest, the lawyer gets experience arguing before the Supreme Court, which he can then point to in marketing to paying clients.So, what lessons can we glean from this for us in Maine?I think your honor works just fine. I don't think we are likely to start wearing snappy waistcoats, and the judicial coffers are no doubt lacking for snazzy tvs. But perhaps worth considering is the concept of more flexible time periods for argument (including telling the appellee not to bother), as well as routinely giving amici argument time to encourage this sort of pro bono and young lawyer training.The idea of giving an appellant a good slug of time, with patient judges making sure that the relevant issues have been exhausted in an exchange not pressed by the clock, followed by a break, then complete curtailment sometimes of the other side, is intriguing and in the end might not require any more time and perhaps less effort from the court in issuing opinions. Thinking of argument not as a time and procedurally driven exercise, but as individually shaped by what order and amounts of time make sense for that case could certain benefits.In the states, I'm not sure anyone follows this approach. The Supreme Court devotes 30 minutes strictly to a side, and rarely (but sometimes) gives more, so especially if the sides have to be carved out, there ends up little time for a lawyer to make his or her points. The bench is so hot, too, that sometimes the lawyers can't get a word in edgewise. Some courts are more flexible on time limits during an argument — the DC US Court of Appeals, for example, can and does run over its time limits, sometimes almost doubling them, and courts like the First Circuit often take a tentative pre-argument stab at varying the time period for an argument based on the individual nature of the case.But these are very constrained exercises of flexibility – we're speaking about another five minutes of time for example, with moving everything along quickly still a driving element of the process.It was interesting to see a different approach, without that time driven element, and more steering by the court of whether anything came after the initial, non-time pressed presentation. This approach, I think, leads to a fairly confident sense by the participants, particularly the judges, thatthey have collected all relevant information to make the decision. There's clearly a balance here, and the old history of all speechifying and no real briefing would be worse than the opposite. The question is whether we've gone too far in the other direction in relying so heavily on briefs, often with no argument at all.
In speaking to us, Chief Justice Beverley Mclachlin mentioned that she had spoken to Chief Justice Roberts about this issue, including giving some time to intervenors, and he was not convinced.Nevertheless, it could be a nice little experiment, for example, if an appellant of right were given 30 minutes, with the first 15 uninterrupted, so the lawyer could give his pitch. The experiment would require the court to really listen during that 15 minutes, and not just chomp on the bit to ask questions. After that time, there would be 15 minutes of questions, extended if the court wants. Then the judges would toddle off to a recess and discuss what they wanted to do. They would come back and if they want to hear at all from the appellee, would tell them so. Or they could just say thanks, no need to hear from the appellee, we're done, and even rule summarily from the bench. Why not? I'm not so sure it would extend the total times spent on arguments. In my next entry, some more learning from our Canadian counterparts, including some tips from an appellate judge that makes sense for us, too.
