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February 18, 2020 Appellate Issues | Winter 2020

Poetry in Motion: How Judges Write

By Candice L. Rucker

Have you ever wondered about the inner workings of a particular court? Or how a judge’s workload might affect the resolution of cases on his or her docket? For appellate practitioners, answering these questions before oral argument could help litigants more favorably sculpt their presentations—or at least avoid doing something that may damage their case. Former law clerks can provide some insight on a court’s internal procedure or the preferences specific to a particular judge. I encourage appellate practitioners to talk with former law clerks and use them as a valuable resource before and during the course of appellate litigation. But who better to answer these questions than the judges themselves? A panel of three judges graciously lent their time and expertise to answering these burning questions (and more) at one of the breakout sessions during the 2019 AJEI Summit.  

Panelists Hon. Jenny Rivera, Hon. Randy Smith, and Hon. Al Diaz—an instructive mix of state and federal judges—spoke to a crowded room of appellate judges and litigators. Judge Rivera serves on the New York Court of Appeals after having been appointed by Governor Andrew Cuomo in 2013 to a 14-year term. She is the second Hispanic woman to serve on New York’s highest court, following her predecessor Hon. Carmen Beauchamp Ciparick. Judge Smith is a Senior Judge of the United States Court of Appeals for the Ninth Circuit. He was nominated by President George W. Bush and was the first Article III judge confirmed by the Senate of the 110th Congress in 2007. And Judge Diaz serves on the United States Court of Appeals for the Fourth Circuit. He was nominated by President Barack Obama in 2009 and confirmed by the Senate in 2010. Judge Diaz bears the distinction of being the first Hispanic judge to serve on the Fourth Circuit. The panel was moderated by Ric Schickele, a career law clerk to Judge Consuelo Callahan of the Ninth Circuit.  

Schickele posed to the panel about ten frequently asked questions (concerning workload, writing assignments, drafting opinions, etc.), which generated a robust conversation between the three judges. In this article, I will summarize Judge Rivera’s comments on the New York Court of Appeals, followed by Judge Smith’s comments on the Ninth Circuit, and Judge Diaz’s comments on the Fourth Circuit. The disparity in their answers to these questions further illustrates how important it is for appellate practitioners to know their courts before litigation begins.

New York Court of Appeals

According to Judge Rivera, the New York Court of Appeals decides about 200-225 cases per year, following a reduction in recent years. Writing assignments for each judge are based on a “draw,” which is a particularly unique method unfamiliar to many litigants. Each case for a particular sitting is listed on an index card and placed on a table face down; the judges of the court literally draw the cards, beginning with the Chief Judge and proceeding in reverse order based on seniority. The drawing judge becomes the reporting judge at conference and is responsible for recommending a resolution to the full court. Unlike the federal courts of appeal, no bench memoranda are exchanged before the case is argued.

Once the writing assignments are made, Judge Rivera writes the first draft of the assigned opinion and then works with one of her three law clerks to “massage the language” and ensure proper citation format. She does not use the parties’ briefs as a template, but revisits the briefs once the draft opinion is complete to ensure that all arguments are addressed. Once an opinion is drafted and circulated, the window for responding to the drafting judge with comments is typically 48 hours. Although methods of communicating between judges differ, Judge Rivera prefers calling her colleagues, rather than sending redline drafts, because she likes offering her colleagues an opportunity to respond to her concerns in their own voice. Judge Rivera will typically write a separate concurrence where, for example, the majority disposes of a case on preservation grounds but she thinks it should have reached the merits. When asked whether she believes appellate opinions are “too long,” Judge Rivera answered negatively. Because each judge tries to write something that is accessible to everyone (including non-lawyers), an opinion is only too long if it is unclear or includes redundancies.  

United States Court of Appeals for the Ninth Circuit

According to Judge Smith, the Ninth Circuit hears about 12,000 cases per year in three-judge panels typical of the federal system. Because of its workload, the court often encourages judges of other courts to sit by designation. Writing assignments are made by the presiding judge of each panel, with input from the other two judges. The presiding judge will circulate the cases by email and ask his or her colleagues if they have particular interest in writing an opinion. Once preliminary writing assignments are made, the assigned judge will prepare a bench memorandum to all judges on the panel. Some judges choose not to participate in circulating bench memoranda, and some judges circulate their law clerks’ memoranda without proofreading. As a result, the utility of these bench memoranda is limited. Oral argument may be granted based on the request of one panel member.

Once Judge Smith receives a writing assignment, his law clerks prepare the first draft of the opinion based on his verbal instructions. The number of draft opinions depends on the efficiency of the law clerk and the complexity of the opinion. Like Judge Rivera, Judge Smith does not use the parties’ briefs as a guide, but rather to summarize what issues must be addressed. Once an opinion is circulated to his colleagues, Judge Smith often receives comments within a week. As a matter of preference, Judge Smith seldomly comments on draft opinions but will offer “nits” identified by himself and his law clerks. Judge Smith typically does not write concurring or dissenting opinions unless he is “strongly involved,” and he reserves separate opinions for differences in opinion on the law and not personal, ad hominem attacks. When asked whether he believes appellate opinions are “too long,” Judge Smith answered positively. Quoting Colin Powell, Judge Smith adopts the belief that “great leaders are almost always great simplifiers.”

United States Court of Appeals for the Fourth Circuit

According to Judge Diaz, the Fourth Circuit’s workload represents the middle ground between the New York Court of Appeals and the Ninth Circuit, and ninety percent of the cases are resolved without oral argument. Writing assignments are made by the presiding judge of each panel at conference, although the Chief Judge has the discretion to alter the writing assignments. Unlike the Ninth Circuit, judges of the Fourth Circuit do not share bench memoranda in advance of oral argument. Each judge expresses his or her opinion on a case for the first time at conference.

Because the Fourth Circuit is a high-volume court, Judge Diaz’s law clerks write the first drafts of his opinions. (Judge Diaz wrote the first drafts of his opinions when he was a North Carolina trial court judge.) Judge Diaz finds the parties’ briefs helpful when they are effectively drafted, although he tends to rely on the bench memoranda as an executive summary. Once a draft opinion is complete, Judge Diaz circulates the opinion to his colleagues, who make it very clear when they have a substantive qualm with his proposed resolution. Judge Diaz welcomes these edits and substantive comments. He will write a concurring opinion where the majority has “gone too far” or addressed issues unnecessary to the judgment. He may also write a concurrence where an issue has been underdeveloped in the majority opinion. The Fourth Circuit follows a 75-day protocol for releasing opinions, although the complexity of the case often dictates how long it takes for an opinion to be released.

I am personally grateful to Judges Rivera, Smith, and Diaz for offering this window of insight into their respective courts. This was an informative and entertaining panel with a bundle of good advice to share, and that advice highlights the need for appellate advocates to be well-versed in intricate and diverse court procedures.

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Candice L. Rucker

Candice L. Rucker is an associate with Phelps Dunbar LLP in Jackson, Mississippi, focusing on employment, civil rights, and appellate litigation. Candice is a former law clerk to Judge Leslie H. Southwick of the United States Court of Appeals for the Fifth Circuit. She can be reached at [email protected].