A Practical Guide to Appellate Judging

I. INTRODUCTION This article is designed primarily for two groups of people: lawyers or trial judges who are wondering whether to become appellate judges, and people who have recently become appellate judges. But observers of appeal courts may also enjoy a peek behind the curtain. I write this after twenty-seven years as a justice on three Canadian Courts of Appeal. (1) I have done three studies about how appellate courts and judges do and should operate in the United States and Canada. Two studies were for the Canadian Judicial Council. Some very able and very busy American federal and state appeal courts gave me an intimate view of themselves hard at work; I also have had some part in training new appellate judges. (2) I keep reading the reforms made by the two top English appeal courts. All that has shown the progress, development, and range of good ways to run an appeal court. The most helpful approach to summarizing appellate work is to describe the work of an individual judge on an appeal court, so I will do that here. I will emphasize problems and the most effective personal methods to solve them. II. WHAT APPELLATE WORK IS A. In General A late colleague used to say of an appellate judge's lot that it's all indoor work and no heavy lifting. Readers probably guessed that already. But some appellate judges do have to travel (especially in the federal courts of appeals in the United States). And the volume of paper at times does literally involve heavy lifting. (3) In practice and in principle, an appeal court daily both corrects error and makes law. It also plays variations on those themes, such as clarifying or reasserting law, or promoting uniformity of results. One chief justice used to say that when he was a trial judge, he had been engaged in a search for truth, but when he went on the appeal court, he switched to searching for error. What about a typical state with two appellate courts, a supreme court which is supposed to make law, and an intermediate appeal court which is supposed to correct error? Even then, the two tasks overlap. Of necessity, each court does some of both. But there can be trouble when either type of appeal court fails to maintain a proper balance between the two different functions. What is the aim of appellate work? A judge on a trial court can often do much to produce or aid justice in individual cases, especially when no jury is involved. But on an appellate court, that is often harder to achieve legitimately and safely. The facts are usually fixed. An appellate judge may be tempted to tweak the law, to favor a party for whom justice in that case is just out of reach. But sad experience shows that in the long run, the effect of following that impulse often produces injustice for many future litigants. That long-lasting evil comes from a past effort to help one now-forgotten individual in his or her suit or prosecution. Hard cases indeed make bad law. (4) Sometimes sympathetic appellate judges do more harm than unsympathetic ones. Someone who wants to become an appellate judge should think about that. And someone who is already an appellate judge should never forget it. B. In the Trenches 1. Reading Appellate work is usually intensely oriented to paper and reading, and produces much less oral interaction than does trial work. That is especially true of those appeal courts which deny oral argument for most cases, those which impose extremely short time limits for oral argument, and those which draw panels from judges who live in different cities. However it comes about, the orientation to paper shapes the judges' task several ways. The first effect is vital, to the surprise of a new appellate judge. Any appellate judge must be good at decisionmaking, paper handling, and time management. Even the onrush of paper (or emails) is considerable. If it backs up, it will flood the judge and his or her colleagues. …

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