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Wednesday, October 25, 2006

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q&A 1, 5, 6 and 8

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am today publishing the responses to the four remaining questions here in the ILB. I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

Here is Q&A 1 - about the learning curve for appellate judges:

Q. All of you except for Judge Crone have been on the appellate or supreme court for more than a dozen years. Three of you were trial judges before your appointment to the Court of Appeals. Judges Friedlander and Najam, and Justice Sullivan came to the bench with no prior experience as a judge. Is there a steep learning curve, moving from the world of a practitioner or trial judge to that of an appellate judge? What are some of the difficulties or surprises?

A. Six members joined the Court of Appeals directly from private practice, and nine members came from the trial bench. All the judges on the Court have had courtroom experience on one side of the bench or the other, and most of the judges have many years of appellate experience. There is, indeed, a learning curve when someone moves to an appellate court whether from a trial practice, the trial bench or other prior experience. Much of what we do is unique to appellate adjudication. Perhaps the most significant challenge for an attorney or trial judge who joins the appellate bench is to learn the fine points of appellate review, which distinguish appeals from trials. The learning curve is modulated by the fact that three judges participate in each opinion. While trial judges act alone, the Court is a collegial institution in which the judges collaborate on a regular basis. Because the Court of Appeals sits in three-judge panels, we have former trial judges and former practitioners working together. The fifteen judges on the Court provide ready access to a wide variety of experience.

For a judge coming to the Court from the trial bench, a noticeable immediate difference was that there is not a decision to be made every five minutes and that schedules are not set by lawyers and litigants clamoring for court time. While there is a tremendous volume of work to be done, there is not the urgency you will find in the trial courts. We all appreciate the luxury of having the opportunity to consider complex legal issues in a contemplative environment. Another immediately noticeable and pleasant surprise is opportunity to work with our law clerks. Regrettably, law clerks are a rarity among Indiana’s trial courts. They are absolutely essential to what we do, and the quality and dedication of the law clerks adds significantly to the experience of serving as an appellate judge. Another is the tremendous intellectual resource provided by the 14 other regular judges and the senior judges on the court, all working in a collegial atmosphere.

A couple of the more difficult adjustments for appellate judges as they start out is adapting to working in a group, as opposed to being the sole decision-maker on a matter, and having significantly less contact with lawyers and litigants. Another major surprise is to discover the volume of not for publication cases decided by the Court of Appeals on an ongoing basis. Even former trial judges who have served on the trial bench for a number of years do not realize the tremendous volume of such cases.

Here is Q&A 5 - about suggestions for oral argument:

Q. Do you have any suggestions for lawyers who argue before you? What about briefing?

A. Entire treatises, law review articles, law school classes, and continuing educational programs are devoted to appellate oral arguments and briefing so a comprehensive answer to these questions is not possible here.

With that caveat, we counsel lawyers who are arguing a case before us that the best oral arguments are conversations with the court. Questions from the bench are opportunities to address matters that may troubling one or more of the justices or judges. Lawyers should always answer the question posed. If you do not know the answer, say so and offer to file a post-argument submission if the Court desires you to do so. Credibility is as important on appeal as it is at any other stage of a proceeding. Address matters of fact and law that are contrary to your position directly and openly and tell us why that adverse fact or authority is not determinative of the matter before us.

In regard to briefing, know and follow the appellate rules. Realize that the justices or judges who will read your briefs are reading hundreds of pages of briefs, records and cases on a daily basis and thousands of pages each week. Short, clear and concise arguments are often more persuasive than lengthier ones. Avoid argument in the statement of the case and the statement of facts. Avoid overstating the facts, and avoid overstating the holding in your case citations. Avoid personal attacks on the trial court, opposing parties and counsel. As with oral argument, acknowledge adverse facts and adverse authority and set forth your argument why such facts or authority should not be determinative of the case.

Here is Q&A 6 - about an "appellate judge track":
Q. For those readers still in school. Is there an "appellate judge" track -- i.e. serving as a law clerk or trial judge, for instance?

A. As you note in your first question, members of the Indiana Supreme Court and the Court of Appeals have varied backgrounds, and there is no particular track that one can follow leading to service on our courts. Serving as a judicial law clerk provides a wonderful opportunity to learn first hand what the job of a Supreme Court Justice or an appellate judge is like. As noted above, both the Supreme Court and the Court of Appeals have members who served as trial judges and members who did not. We have justices and judges who served as prosecutors, deputy prosecutors, public defenders, civil trial lawyers, business lawyers, family lawyers, bankruptcy lawyers and probate lawyers. The varied backgrounds yield a synergy which benefits both the Supreme Court and the Court of Appeals.
Here is Q&A 8 - about women and minority appellate judges:

Q. There are no women on the 5-member Indiana Supreme Court (and there has been only one woman on the Court in its history). There are only four women (of 15) on the Court of Appeals. Minorities are poorly represented on both courts. Any thoughts?

A. Both the Indiana Supreme Court and the Indiana Court of Appeals are committed to racial and gender equality. However, the Justices of the Indiana Supreme Court and the Judges of the Court of Appeals are appointed by the Governor from the names put forward by the Judicial Nominating Commission. As a result, we do not choose our colleagues, and we don’t have the power to select more women and minorities as members of our court.

On matters within our control, members of both courts have been leaders in promoting opportunities for women and minorities within the legal profession. Justice Frank Sullivan has co-chaired the American Bar Association Judicial Clerkship program that encourages minority law students to seek judicial clerkships. Judge Ezra Friedlander is co-chair with former Justice Myra Selby of the Commission on Race And Gender Fairness in the Courts. Both Justice Sullivan and the Court of Appeals have received the Raab Emison Award from the Indiana State Bar Association for “significant contributions made in advancing opportunities for minority lawyers in legal employment and the legal profession.”

Our Supreme Court has started the CLEO program to assist entering minority law students. For more than ten years, the Court of Appeals has sponsored its own CLEO program hiring students each summer to work as judicial clerks. Both courts employ a number of minority lawyers and women as judicial clerks and staff attorneys. It is our belief that by developing programs that assist minority law students and exposing them to the judicial branch that they will attain full and equal participation with judges in the future. Also, by working with minority lawyers, we serve as an example to other members of the legal profession to show that we value racial, ethnic and gender diversity within the law.

We would also note that Supreme Court Justice Myra Selby and Court of Appeals Judges V. Sue Shields, Linda Chezem and Betty Barteau, all left the Indiana appellate judiciary to pursue more lucrative employment opportunities, and Judge Robert Rucker left the Court of Appeals to serve as Justice of the Supreme Court.

Posted by Marcia Oddi on October 25, 2006 04:11 PM
Posted to Indiana Courts