State Appellate Judge Taking Questions Forum

[Opinions_R_Us]

I was a trial lawyer for 24 years, have served on my state's intermediate appellate court for 14 more and have taught appellate and trial practice as an adjunct for the last 12 so fire away if you have questions I can help with.

FYI, I also answered some FAQ's last year in this thread: http://www.top-law-schools.com/forums/v ... 4&t=212684

[encore1101]

Thank you for doing this!

In regards to appellate practice:

1. In terms of oral arguments and briefs, what are some of the most common and/or egregious pitfalls that you encountered?
2. What are some of the ways that 'real' appellate practice differs from Moot Court/tournament environments?
3. Do you think it is common for appellate judges to be heavily leaning towards one side prior to reading the briefs/oral args, and if so, how often are they able to be swayed to the opposing side at the conclusion?

[Opinions_R_Us]

Thank you for doing this!

In regards to appellate practice:

1. In terms of oral arguments and briefs, what are some of the most common and/or egregious pitfalls that you encountered?
2. What are some of the ways that 'real' appellate practice differs from Moot Court/tournament environments?
3. Do you think it is common for appellate judges to be heavily leaning towards one side prior to reading the briefs/oral args, and if so, how often are they able to be swayed to the opposing side at the conclusion?

In answer to your questions:

1. The most common problem at oral argument is the lack of preparation for oral argument by the lawyers. It is pretty embarrassing when the judges have to help the lawyers find the place in the record that addresses the point they are arguing. With respect to briefs, the biggest problem is attorneys who ignore the standard of review by deliberately misrepresenting the facts in the case and/or the law that applies to the issue. The biggest part of the job of my law clerks is simply vetting the briefs to verify what the facts and the applicable law really are.

2. Moot Court is a great extracurricular activity for prospective appellate law clerks and lawyers but it is still a bit removed from reality. I do several moot court tournaments a year at various law schools in my state and I often help moot the teams the school where I teach sends to national tournaments. The biggest differences I have noticed are that the students generally do a better job arguing the issues than many of the lawyers in the real world and the judges are tougher in a moot court setting than they tend to be in the real world. I think this is because in the real world, the judges only ask questions to help them work through the issues and decide the case while in moot court, the judges don't care about the outcome but rather are grading the students on how they handle themselves under fire.

3. I do know of a couple of judges with an "agenda" and who will likely vote on a case solely based on whether a particular result will advance that agenda but that type of judge is pretty rare at the state level, at least where the judges are not popularly elected. In my experience, the vast majority of appellate judges have an open mind and no preconceived preferred outcome. After reading the briefs, the law clerk's bench memo and the applicable statutes and case law, most judges are likely leaning one way or the other prior to oral argument simply because the outcome compelled by the law is usually pretty clear at that point. However, even then, it isn't unusual for a judge to change their mind after oral argument if the argument clarified the issue. In my experience, oral argument changes my thinking about a case, at least to some degree, about 10% of the time, usually because oral argument clarified a point in a muddled brief.

Hope that helps.

[encore1101]

Very helpful, thanks!
I'm sure I have some more questions, so I'll post again soon.

[Anonymous User]

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[sundance95]

Any advice or insight on How to Become a Judge?

[Opinions_R_Us]

Any advice or insight on how to become a judge?

As I have mentioned in a post last year in another TLS forum, I live in one of the minority of states where the judges are not popularly elected (which is a horrible system as far as I am concerned). That said, becoming a judge anywhere involves political considerations at some level, either by actually winning an election or being selected by a president, governor or legislature. I was involved in local and state politics for over 20 years before I was approached about taking a seat on my court.

In my state and most others that don't popularly elect judges, there are strong ethical prohibitions about political activity and influence once you are on the bench and the result in my state is a judiciary that at all levels is pretty independent of the other two branches of government and while we sometimes get a few bad judges, there is no pervasive corruption problem that seems to plague states where judges are elected.

As to how to get to the bench, the answer depends on the system used. To become a federal judge, you need to have been politically supportive of the party occupying the White House when a vacancy occurs, be cozy with both or at least the senior senator from your state, be acceptable to the ABA and a majority or super majority of the Senate depending on the current filibuster rules.

At the state level, either just win an election if that's how its done in your state (easier said than done) or know the right people to be be nominated by the governor and confirmed by one or sometimes both houses of the legislature. In some states you also have to pass muster with a screening committee that whittles down the candidates to perhaps three names for each vacancy.

In short, the trick is to figure out where the lightning will strike and then go stand there so a lot of luck is involved but my advice to maximize your chances is to become a very good lawyer so you have a reputation for competence, get involved in bar association activities so your peers are more likely to recommend your candidacy favorably, get to know the power brokers that influence judicial selection if your state doesn't elect them and then cross your fingers and hope that the stars line up for you.

[AreJay711]

You said in you last thread that all of your clerks were very good or superstars. I realize it varies by judge, but do you have any general advice on how to be effective as a clerk? What qualities made your clerks good?

[Opinions_R_Us]

You said in you last thread that all of your clerks were very good or superstars. I realize it varies by judge, but do you have any general advice on how to be effective as a clerk? What qualities made your clerks good?

First of all, when I was DA and had 80 employees, I learned that I couldn't go far wrong if I just identified and hired the best person available at the time a vacancy occurred and that philosophy has stood me in good stead by generally getting me some high quality employees over the years and so I have continued to follow it as a judge.

Judicial clerkships are highly sought after so it is a buyer's market for the judges doing the hiring. Despite a large pool to choose from, and although it is more work for me, I spend more time than most appellate judges on the hiring process. You should recognize that every judge is different so your mileage may vary, but with that disclaimer, here is a quick breakdown of the process I use to hire clerks:

I accumulate somewhere around a hundred letters enclosing resumes a year, most are unsolicited. I start the official process usually between mid-September to the beginning of October by posting a notice on my court's employment website and notifying the career services offices of all of my state's law schools that I am looking and those interested should send me a cover letter enclosing a resume, law school transcript, writing sample, state employment application and references and/or recommendations.

I accept applications for around 30 days and then I sit down with my clerks and we look through all the stuff submitted and try to whittle the group down to 20 people we will interview. In making this determination, I look for people with solid academic credentials, evidence of a good work ethic and their grades, particularly in the "skills" courses involving writing or oral presentation such as legal writing, trial and/or appellate advocacy and any extracurricular activities involving those skills such a Moot Court or a Trial Advocacy team. I don't care about law review because the transcript will tell me if they are smart or not. I also look at what they like to do outside of studying law because I also want to know what kind of person they are. Good candidates who meet these criteria are plentiful so it can be tough to get the number down to 20. Although I prefer that the candidates interview in my chambers face to face with my current chambers staff sitting in, I will often conduct an interview via video conference if it is not convenient for the applicant to come to me. In my experience, the interviews don't tell me who the best candidate is but they often tell me who it isn't.

After all the interviews are completed, I sit down with my staff (because they know me well and have a good feel for who will or won't fit in with my personality and that of the other chambers staff). We discuss the credentials and our impressions of the interviewees among ourselves and try to reach a consensus on who the top five candidates are.

Because writing samples may or may not represent the sole work of the applicant, the top five applicants are invited to do a writing exercise. This can be done either in my chambers (we try to set them up around the fall/Christmas break for the students unable to make it any other time) or at their law school if the school's career services office agrees to supervise it and follow my instructions. The applicants are given copies of the briefs in a very simple single issue case. They are also given copies of two applicable cases and instructed that no additional research is either required or permitted. They are then given three hours to put together a bench memo analyzing the issue. I got this idea from a close friend and former member of my Court who is now a federal COA judge. This extra effort in the hiring process can be very revealing regarding how the finalists organize and analyze the issue under pressure. One candidate simply got up and walked out of the office leaving behind a note that said "I just can't do this but I am still interested in the job." Needless to say, she didn't get it.

The bench memo is turned in to my paralegal who removes the name and any other identifying information with respect to the applicant and assigns it a number and then gives them all to my clerks and I to review anonymously. We then review all the bench memos and separately rank them without knowing who the author is and without discussing the candidates among ourselves. When that is done, my clerks and I get together and compare notes to see how close we came to each other in ranking the bench memos (we usually are pretty consistent). After that, my paralegal will tell us which applicant wrote which bench memo and then we discuss all the candidates one last time after which I make a final decision and an offer to the candidate I believe to be the best of the group.

The result of all this is, as you noted, law clerks ranging from very good to superstar so I regard the lengthy process we use as worth the trouble.

As far as being effective as a clerk is concerned, that is easy. Meet the deadlines for getting the work done. Don't be afraid to talk to your judge and ask questions if you don't understand something (I view a clerkship as a learning opportunity for young lawyers and an opportunity for me to pay forward some of what I learned from judges in my career), don't be afraid to tell your judge if you disagree with him/her (but be prepared to defend your analysis) and just generally try to make your judge look good.