Time for our report on the remainder of the AAAL conference. In the last sessions, we heard from a panel of the current and two preceding Chief Justices of Texas, a panel on how the Texas court engages in rulemaking, and, finally, a panel of two veteran 5th Circuit judges.
The panel of Chiefs
Chief Justices Phillips, Jefferson and Hecht spoke. We should all be happy we do not elect our judges (except probate), given the politicking that can goes on. The Texas Supreme Court also has an interesting history given the Texaco v. Pennzoil suit and a 60 Minutes “Justice for Sale” episode that makes for interesting listening (among other things, 6 incumbent Justices resigned thereafter). Thankfully, there are not a lot of lessons to apply here in Maine. Basically, CJ Phillips was a leader in tidying after the deluge, followed by CJ Jefferson (the first African-American CJ in Texas), followed by CJ Hecht.
They all remarked that they spent a great deal of time working with the Legislature.
One interesting tidbit is that they let clerks sit in on the chamber conferences, and sometimes the clerks answer questions. Apparently the Kentucky Supreme Court does this too, but that’s it. One upside they said to this practice was sending clerks out into the world who could note that despite elections, the judges decide appeals based on the law.
Texas also has hyperlinked briefs like the Fifth Circuit, so the judges, like their federal counterparts, are reading briefs on line with a minimum of two screens before them. All arguments are videotaped and archived, and all briefs are available on line with open access to all.
The Texas Supreme Court is very generous about briefing, accepting amici briefs at any time in the process, and granting post-argument briefing.
The panel commended Texas appellate lawyers, noting that appellate certification began in 1988 and the resulting bar is very civil and works on a sophisticated level.
Finally, as to the future, CJ Hecht said everyone is of the same mind: the judiciary is losing its business to mediation and arbitration. Filings are down everywhere. Procedures need to be streamlined. Noise is increasing about the delays and costs. CJ Phillips (who now practices at Baker Botts) agreed, saying that when the courts are abandoned, this means law will be determined by the Legislature, not the Court.
The takeaway here is that they carry out a formal, bench-bar collaboration. The latest rule under consideration is how to deal with public communications to the court, e.g., when a member of the public sends an e-mail to a judge or judges. The draft rule on that is now pending before the Texas Supreme Court for its review.
Again, the Court-Legislature relationship is close and good, with lots of discussion back and forth.
The Veteran Judges
Judges Higginbotham and Prado observed first how the docket has changed. There are no more jury verdicts in securities cases or antitrust — or trials of any kind, for that matter. Now their docket is filled with immigration and sentencing appeals. They also commented that there was much more downstream delegating, with staff attorneys making initial determinations as to what appeals are worthy of argument, for example. There are fewer appeals and fewer oral arguments – 75% aren’t argued. The hyperlinked briefs speed everything up, as they simultaneously view the brief, cases and the record.
Judge Higginbotham mentioned that with fewer cases on appeal from fewer trials, fewer lawyers are trying cases, and judges are coming onto the bench without trial experience. The benefit of trial experience, he stated, was learning how to wade through a cacophony of facts to find the narrative line to support the client’s position. Clerks are bright and able but have no fact expertise – it’s all about the law to them. But you need a story. A trial lawyer has decisional responsibility. Some judges don’t gain this decisional experience and, he says, can be too influenced by their clerks. Judge Prado commented that some judges on the appeal court without trial experience sometimes don’t understand why a trial judge did something; now what is happening is that trial judges with no trial experience have to make decisions in overseeing trials and make mistakes. The appellate lawyers then get stuck because the lawyers below didn’t preserve the errors.
Judge Prado prefers not having the trial lawyer argue the appeal, saying it results in more work for him and his clerks, because the trial lawyers tend not to research properly, they are not responsive to the other side, they don’t look outside the circuit to look at the law, the arguments aren’t framed well. Because the Court doesn’t hold argument in most cases, when it does, it usually means that there is one issue that’s bothering the Court. An appellate practitioner can usually figure out what that issue is. The trial lawyer doesn’t, and instead, ends up regurgitating his/her brief.
Judge Higginbotham said that some appeals need argument just to be heard, to have the public process, showing that the Court gave it attention and understood what was involved. Court houses, he said, are becoming empty shells, losing their point and symbolism. He also prefers appellate lawyers, saying they go right to the issues, and know what to prioritize.
(Thus, both these judges adhered to the rule “know your audience,” telling appellate lawyers what they like to hear. On the other hand, these two have life tenure and it was clear that they weren’t going to say anything that they didn’t really think.)
You can glean from these notes what you will. If those who can leave the system through arbitration and mediation do so, this will impact what legal practice will look like in the future. If appellate work grows (even in Maine) as a specialty, as appears to be the case, but there are fewer commercial appeals, then expertise can be gained only in the public sector. The few remaining appeals involving commercial clients will go to national appellate boutiques. Between the Big Law boutiques and public sector counsel, the middle class Maine lawyer will be squeezed out, as will the middle class private client.
On that happy note,
The next AAAL conference will be held in the Spring in Boston. Tentatively, Maine, other New England State, and First Circuit judges are scheduled to participate. As always, we will provide the full skinny.