The future of appellate practice


The next session at the AAAL conference was on the state of the appellate courts and appellate practice, with a panel of two judges from the Florida district courts of appeals and a judge from the 11th Circuit.

Reading briefs on computers.  All three of the judges read briefs on computers.  Judge Makar on the First District Court said his court is on the verge of hyperlinking everything in briefs, including links to the Westlaw case for cites.  In the Florida Supreme Court, the judges could see the briefs on their ipads, but not the footnotes, and practitioners didn't learn of this for months.  All the judges said they liked visuals in the briefs themselves – snapshots of the plan at issue, etc.

What do these developments teach us?  (1) don't use footnotes if you can help it or for anything important; (2) use lots of visuals; and (3) understand that the reader will be jumping back and forth from your text, meaning you've got to use headers, short paragraphs and other techniques to keep the point you are making in the head of the reader as he or she grazes.  There was a study of Italian judges that showed multitasking back and forth was very inefficient, but it's not going to stop, so you must deal.  Important things should be put on top of the page, and the eye scans a page in an F shape.  One judge commented that while he knew it was inefficient to keep going back and forth from reading a brief to reading emails that popped up, if he didn't, another judge would inevitably call him asking why he hadn't responded to an email sent 30 minutes before.

New arguments on appeal.  One panelist commended an article from January 2014 by Angela Winfield expolring the disnction between what is allowed and not, with lots of cites.  One judge referred to the principle of raising and accepting accepting alternate grounds for a result the rule of the "tipsy coachman" – as long as you get there, it doesn't matter how.

Judicial writing style.  Judge Makar likes to use a more folksy, readable style; he doesn't want to be dull.  Other members of his court, however, think he can get too colloquial.  The Florida Supreme Court supports a much more generic style.  Judge Rosenbaum of the 11th Circuit and Judge May echoed a desire not to be dull, and to put something up front that grabs people, but agreed that other judges can be offput by style efforts, and that judges must be very careful not to condescend to the parties.  

Independent research.  On this topic, upon which I've blogged repeatedly, Judge Makar says he does it; Judge May said no; and Judge Rosenbaum said if there is something new, he tries to give the parties an ability to address it at oral argument.  On using Wikipedia, all the judges said no, since, among other things, it's a wiki, but Judge Makar said he may be more free and easy with concurrences and dissents, using cites for facts that aren't necessarily judically noticable but "virtually incontestable."  As an example, he cited Wikipedia in an opinion to identify the number of languages spoken in the United States, saying he had no qualms about that sort of citing.  Another speaker noted that 50% of the cites to links in Supreme Court cases have now disappeared. 

En banc decision-making.  The judges, interestingly and consistent with a Judge Lipez article on the topic, said that en banc hearings are adverse to collegiality and fraught with emotion, with feelings getting hurt.  I don't know why this should be, when disagreement on other panels aren't so fraught, except perhaps that with the previous view out in the world, the disagreement becomes more personal?  A speaker said he was on an en banc case and there was a tie, so he was the tie breaker, and he was bombarded with emails from the other judges.  Judge May said that en banc discussions could be frustrating because some judges come very prepared, while others "come to be educated."    

Oral arguments.  On the shrinking allowance of oral arguments, one concern raised was that the judges may not confer with each other with matters submitted on the briefs.  It's my understanding that the same process is used in Maine, whether on the briefs or after argument, with everyone sitting down physically together.  If so, this is a good thing, because some of the judges speaking said that that they had found that valuable input was in fact lost when everyone is all over a state and communicating virtually instead of in the same room. 

More to come!