The rest of the story (pt. 1)


So here's some of the rest of my report on the AAAL spring conference, the theme of which was the future of appellate practice.

In the first program, the Dean of Southern Illinois School of Law and Douglas Alexander of the appellate boutique Alexander Dubose in Texas chatted about changes in various aspects of appellate practice.  With respect to research, they noted how the old books-west keynote approach was a "roots to branches" type of research, while now on the internet, it's the opposite — branches to roots.  I think I've railed about this development - how newbies are have less and less opportunity to be trained and understand how a particular issue fits within the pantheon of the law.

The second program had  the ex-Chief and now Senior Justice of the Indiana Supreme Court, Judge Tinder of the Seventh Circuit and the clerk of the Seventh Circuit.  The clerk provided some statistics that confirmed my understanding of where appeals are going – the overall number is down, the number of pro se appeals are up.  The panel noted the importance of oral argument as communicating that the judges are making the decision, not a clerk – argument is useful as the public face of the judicial system. 

Here's a factoid – in Quebec, when both parties are French speaking, the opinion is issued in French; when both are English-speaking, English; when one party is French and the other English, the Court issues the decision in the language of the losing party. That seems very judicious.

Justice Shepherd from Indiana criticized the pre-assignment bench memo approach a bit, used in Indiana (and Maine) saying that it was started at a time when there was a huge influx of appeals, but numbers have now stablized, and pre-assignment can be an easy path to less thinking time for the judges who do not receive the assignment.  He said that if one were honest, pre-assignment can effect outcome.

The clerk noted that mediation at the appeal level had its worth for settling, but that it was also a mechanism to get the parties to focus in their briefs on the issues truly in play. 

Take a look at 34 So. U. L. Rev. 73 (2009) for an interesting article on a study researching the impact of the standard of revivew on appeal, using Illinois data. 

The next panel included various practitioners discussing the shrinking appellate marketplace, and noted that the concept of the appellate lawyer needed to be re-packaged - it makes sense to have the participation of an appellate lawyer in any case with legal issues.   The general consensus was that the future will have a greater percentage of appeals revolving around statutory challenges, and fewer commercial cases, which I think is right, too.

THe next panel had some real fire power, with Chief Judge Diane Wood of the Seventh Circuit and Chief Judge Rita Garman of the Illinois Supreme Court (yes, just like Maine, a woman CJ for the state, as well as the federal court of appeals.  Yay.)  Some snippets out of that session:  in the Seventh Circuit, they don't vote the first time they meet after an en banc argument, because that will just impair the ability of the judges to changes their minds thereafter.  CJ Garman noted that her pet peeve was how some lawyers framed the issue in their briefs – she gave examples of where they simple got it wrong, and the court had to re-frame what the relevant issue really was.

There's more, so to be continued.