Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity as to why clients failed to show up for oral argument when the court’s decision could have a huge impact on their lives.

Her post falls short of saying how this curiosity typically impacts the thinking of a justice. Usual local practice would make it impossible for it to have a lot of impact unless the justices were willing to engage in a lot of guesswork, as I rarely see clients seated at counsel’s table. But even if the presence of clients were readily determinable, I think that this would have, at most, negligible impact — unless certain things we appellate lawyers tell ourselves and our clients about the appellate process are wrong.

The most gifted trial lawyers can make for lousy appellate lawyers — and vice versa — without tailoring their presentations for each forum. A commonly noted difference between the trial and appellate courts is that in the trial court, a lawyer tries to set a mood and may even seek to sway jurors based on emotional appeals, while the appellate lawyer’s presentation must be restricted to reason (which is not to say that the appellate lawyer cannot also tell a compelling story). Unless we’ve been kidding ourselves about this distinction, I have to think that the presence or absence of the client at oral argument is largely immaterial and impacts only the justices’ curiosity. Which may account for why Bader found this curiosity surprising.

Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal.  Specifically, Stegman suggests the following:

3.  We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions.

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7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes. Litigators should have an opportunity to discover the mistakes and point them out to the judge. Furthermore, oral arguments would be more focused, saving time.

Let’s take these one at a time in the extended entry. . . .

PEREMPTORY CHALLENGES

What really strikes me about Stegman’s peremptory challenge suggestion is that he would allow a peremptory challenge to an entire division!  Stegman’s been practicing for more than 50 years — longer than I’ve been alive — so I imagine he has had some bitter experiences in that time.  Perhaps this suggestion arises from those experiences.  I don’t know.  I would have loved for Stegman to explain his reasons for this one.  I’m always up for a good “sea story.”

PRE-ARGUMENT REVIEW OF RESEARCH ATTORNEY NOTES AND DRAFT OPINIONS

As for getting access to research attorney notes and draft appellate opinions . . . I’d love to see this put forth as a formal proposal by the Judicial Council just to see the public comment it would get. 

I can see Stegman’s point about argument being better focused as a result.  But I suspect most appellate jurists would oppose this.  As a retired justice noted in the article I cited in this post, the motivation behind a question from the bench can be difficult, and in some cases impossible, to discern.  My suspicion is that justices like it this way because it gets a more “honest” answer from the advocate.

Stegman’s point about being able to address mistakes before argument seems like it could have at least one beneficial side effect.  It could reduce rehearing petitions by allowing parties to raise some issues — mistake of law, erroneous or omitted facts or issues — prior to the argument, giving the court a chance to correct itself without a petition for rehearing after issuance of its opinion.

One might use the availability of tentative opinions on trial court motions, including dispositive motions, to justify disclosure of draft appellate opinions.  But I think the viability of something like this at the appellate level depends a lot on the details.  I can’t imagine that research attorney notes will ever be fair game, but a draft opinion made available shortly before the hearing might be a proposal that could gain some momentum.

Overall, I’m agnostic on this suggestion because I haven’t had enough time to think about it and my opinion would vary depending on the details.  First thoughts from anyone?