My November 29, 2016
Phoenix has a temperate climate, and I’m a man of a certain age who sits behind a desk much of the day. So, along with eating a better diet than I used to, I also try to exercise daily. My “old man” exercise is walking and listening to podcasts early in the morning. Most days, I get up at about 5:30 a.m. and walk a mile and a half to and from a coffee shop, where I get a good cup of coffee. Along the way, I listen to podcasts, typically things like “Freakonomics,” “Planet Money,” or “Stuff You Should Know.” Oftentimes, I get my coffee and go. But sometimes, I sit for a few minutes with a few regulars I’ve gotten to know, including one individual who had a very bad court experience and is not afraid to share. Sometimes what he has to say is hard to hear, but it is good for me to know, in a plain way, that my smile isn’t brighter, or my jokes funnier, simply because I am a judge.
Back at home, I try to spend some time reading the Wall Street Journal and may grab another cup of coffee and then get ready for work. I’m a sports fan, and so my 20-minute drive to chambers often involves listening to “The Dan Patrick Show” or “Mike and Mike” on the way.
I try to arrive at chambers well before 8:00 a.m., and hopefully closer to 7:00 a.m. I begin my day by reviewing email I received overnight. I have learned that the time before court opens and after court closes (e.g., before 8:00 a.m. and after 5:00 p.m.) often is the most productive for me, so I try to make sure I use that time effectively. Compared to my five years as a trial judge, Division One is very, very quiet. That is wonderful, as I find that getting big “gulps” of time to read, research, think, and write is essential for what I do as an appellate judge. And for me, early and late in the day, and on weekends, are the best opportunities to get those big gulps of time.
Focusing on November 29, 2016, I sent my first email message at 7:21 a.m. and my last at 6:15 p.m. Since July 2015, I have served as vice chief judge of Division One, having been elected to that position by my peers. As vice chief, along with a full case calendar, I also am involved in various administrative and other matters that I was not responsible for as a line judge on Division One. One of these administrative matters is a change to how Division One addresses a jurisdictional issue we are seeing in civil cases with more frequency. So that remand orders would not come as a surprise, first thing on November 29, I call the Superior Court Civil Presiding Judge to discuss the change in approach. A 7:33 a.m. email message summarizes that conversation. And an email message from an hour later to that same judge provides a short description of the reason for the change, attaching a sample order we are now using, encouraging that judge to circulate it to that court’s civil bench and stating that I will mention the change at a continuing legal education program later in the day (more about that later).
Another email exchange from early that day discusses scheduling for my weekly conferences in February 2017. Division One has five panels of three judges, hearing oral argument in two courtrooms, and we typically meet to discuss and hear oral argument on Tuesdays and Wednesdays. My February 2017 conferences are scheduled for Wednesday afternoons. As vice chief judge, one of the additional administrative responsibilities is to preside over a show-cause calendar twice a month when court reporters or attorneys in criminal and juvenile cases have not timely filed their transcripts or briefs on appeal. Oftentimes, these calendars clear completely, meaning there are no hearings, or almost completely, meaning the hearings are short. But sometimes those hearings can be extremely time-consuming. This past summer, we addressed some enormously time-consuming issues in trying to obtain transcripts in some criminal appeals that resulted in, among other things, several show-cause hearings; preparing and issuing civil arrest warrants; ensuring those civil arrest warrants were executed; holding a return hearing when the warrants were executed and the individual was taken into custody; presiding over various compliance hearings; and imposing monetary consequences for contemptuous conduct. And those show-cause hearings are held Wednesday afternoons, so my November 29 involves some time trying to see what we can best do to avoid scheduling conflicts with conferences and show-cause hearings in February 2017.
November 29 also is a conference day for me. And an overview of our case processing systems and approach is helpful to get a feel for how our conferences work and what we do to prepare for and follow up from conference.
Division One is almost exclusively a paperless court, having implemented electronic filing beginning in 2009 and using a home-grown electronic case management system put in place before I came to the court nearly five years ago. Within the past year, we have created a SharePoint platform, which allows us to exchange drafts and comments on drafts in advance of and after our weekly conferences. This allows access to appellate briefs, particularly significant trial record items and drafts on my desktop as well as on a court-issued iPad that I typically take everywhere. When I am out of the office, including when I am traveling, this allows me to carry on one iPad briefs, appendices, record items, and drafts for dozens of cases that, in paper form, would fill boxes, be impossible to carry, and involve substantial paper and toner costs. And because Division One adopted electronic filing and case processing before I arrived, my adaptation to appellate court technology was simply learning the systems and approach others had already put in place.
What day and time we meet for conference depends on whether we have oral argument and when our conference is routinely scheduled. From September to December 2016, the panel on which I served had conference Tuesday mornings. Conference days are busy, and the success of a conference is defined by the work done in the days and weeks before conference. On November 29, we have six civil cases to conference and three oral arguments. Most of these cases are assigned to individual judges to draft as “chambers” drafts, although we have drafts by staff attorneys as well. And given some international travel by one of the regular judges on the panel, the third judge on the panel that day is a judge pro tempore, a Superior Court judge who agreed to serve and was designated to do so by an administrative order of the Arizona Supreme Court. I serve as the acting presiding judge, responsible for case assignments and presiding over conference and oral argument, given the absence of the traveling judge, who was the presiding judge for the panel.
Writing assignments for these six cases were made by the presiding judge in late September 2016, when we received a memorandum assigning each of the six cases to one of the three of us, noting which cases would have staff drafts. I was assigned to be the primary author for two of the cases, neither of which had staff drafts.
For cases where I am assigned as the primary author of a draft, after receiving the assignment from the presiding judge, I will review the briefs and then assign the case to one of my two law clerks. We will then discuss the case and our initial thoughts and the law clerk will then dive deep into the record and briefs and prepare a draft for my consideration. I will need to get my draft to the two other judges on the panel one week before conference, so I need a draft from my law clerk a week before that (two weeks before conference). The law clerk and I talk about the case and discuss questions the law clerk has during the research and preparation of the draft. This interaction always involves a discussion at the beginning. Depending on the issues involved in the appeal, our further discussions may range from comparatively little to several times a day. And the more time I serve on Division One, the more likely it is I may have already addressed a similar issue in a prior decision. When that happens, the law clerk will have guidance from my prior decision on how I am likely to approach an issue.
When I receive the law clerk’s draft, I spend substantial time revising and editing it, oftentimes undoubtedly to the law clerk’s chagrin. I edit drafts heavily, and I do so regardless of who provides the draft, be it a law clerk, a staff attorney, a colleague, or my own draft. So, when it comes to editing, I’m an equal opportunity “butcher” of text, with my goal being to get the best decision possible in the time that we have to consider a draft. It will take me some time to revise and get comfortable with the draft that the law clerk prepared, ranging from hours to days. When I am comfortable with the draft, we will then circulate the draft to the panel using SharePoint and typically via email as well, using a belt-and-suspenders approach to let the panel know the draft is posted on SharePoint and ready for their review.
The process for staff attorney drafts is similar, but my interaction with staff attorneys typically is less frequent during draft preparation. The staff attorney and I will confer at the beginning of the drafting process and, unless there is some unanticipated issue, typically we will not confer again before the staff attorney circulates the draft to the panel for consideration.
In the week leading up to conference, I will look carefully at drafts provided by other judges and staff attorneys and provide suggestions, typically in the form of redline edits in Word. For all drafts that carry my signature as primary author, including particularly for drafts by staff attorneys, I spend substantial time making sure they use the approach, style, and voice that I have developed over time (and that continues to evolve). As a result, even if I agree with every speck of analysis in a staff attorney’s draft where I am the primary author, I will spend considerable time “Thumma-izing” the draft.1 For all drafts, we work hard to develop and share comments and redlines electronically with the other judges on the panel at least a day or two in advance of conference. And for concept or analytical questions or concerns that do not lend themselves to a redline, I will go speak with the judge or staff attorney about my questions or concerns. My effort is to make sure that the primary author can know of any concerns I may have, whether additional research or editing is needed, and prepare for a more substantive discussion at conference.
Our November 29 conference starts at 8:45 a.m., and as is typical in Division One, we conference cases both before and after oral argument. Participants in our conferences include the three judges, their law clerks, and each staff attorney who has prepared a draft. This custom, to include law clerks and staff attorneys, has been in place in Division One for as long as folks can remember. It is different than in many other courts, where only the judges or justices participate in conference and, for some courts, where formal conference is only held after oral argument. For Division One, the approach has worked well and is a learning opportunity for law clerks. This approach does mean, however, that for most conferences, there may be 10 or more people who attend all or part of a conference. The number of people attending provides additional pressure to be efficient and make sure to share questions or concerns in advance so meaningful, substantive responses can be researched before conference and shared at conference.
As is typical, our November 29 conference begins with presentations by, and questions of, the staff attorneys who prepared drafts. After those cases are discussed, we excuse the staff attorneys so they could turn to other work. We then turn to the presentations for the other drafts, by the law clerks assigned to initially prepare the drafts, and questions. Because we shared comments and questions on the drafts electronically in advance of conference, we are able to have a meaningful discussion at conference on all six cases before the first oral argument at 9:30 a.m.
Just before oral argument begins, the judges move from the conference room to a small elevator on the third floor, where our chambers are located, to the robing room on the second floor, where our courtrooms are located. We then wait for the bailiff’s call that the parties are ready for our first oral argument. We participate in oral argument in three cases, with each side having 20 minutes and with oral argument starting at 9:30 a.m., 10:15 a.m., and 11:00 a.m. Division One is, I believe, perceived as having comparatively hot or active panels and, I hope, where the advocates have a meaningful conversation with the court. Along with oral argument being open to the public, they are both audio and video recorded, with the recordings available by name and case number on our website for four weeks and, after that, on YouTube.2 Law clerks serve as bailiffs, and we leave the bench between oral arguments to go to the robing room while the courtroom is set up for the next oral argument. That also gives us a chance to discuss initial reactions to oral argument immediately after it is completed. After our last oral argument, we again conference the cases to discuss what we learned at oral argument.
The Division One chief judge and I then take the judge pro tempore to lunch to thank him for his service and to discuss current events in his court. After returning to chambers, I meet with my law clerks to discuss our approach given what we learned at conference and to touch base on future drafts that are works in progress. After that meeting, I respond to some more email, including regarding requested extensions for due dates for some transcripts and opening briefs. I then recuse out of a case given a conflict and address some thoughts on an Arizona Supreme Court task force on court management of digital evidence I am chairing. I also deal with some additional administrative issues, including a required change in Division One’s telephone numbers. Then, I turn my attention to a continuing legal education program where I will speak later that afternoon.
The Appellate Practice Section of the State Bar of Arizona is very active and holds its monthly meetings in a conference room just down the hall from Division One’s chambers, which facilitates easy attendance by our judges. The current Executive Council of the Section includes a Division One judge, the vice chief judge of Division Two, and Division One’s chief staff attorney. Among other things, the Section sponsors a daylong “Working with the Arizona Court of Appeals” program, which this year is held on November 29. So sometime after 2:00 p.m., I drive about 30 minutes to serve as moderator of a 75-minute panel discussion with two other Division One judges and Division Two’s vice chief judge. During that program, we solicit and entertain questions from both seasoned and new appellate practitioners. And as I had promised the Superior Court Civil Presiding Judge early that morning, I mention the change in approach for jurisdictional issues. We address a variety of other appellate issues, sometimes with different perspectives and viewpoints, and solicit and receive suggestions. After the formal program ends, we speak with some attorneys who stay after to chat about odds and ends and then I review some more email and drive home.
On November 29, I also exchange email with a staff attorney who is preparing a draft where I am the primary author. Midmorning and late in the day, I skim press clips that I routinely receive. I serve as secretary of the Executive Committee of the ABA Judicial Division’s Appellate Judges Conference and I exchange email with the chair about an agenda item and minutes I circulated in anticipation of an upcoming meeting. And I make sure a meeting announcement for a conference call for The Judges’ Journal Editorial Board, on which I also serve, makes it on my calendar (I’m the worst scheduler on earth). I respond to a recommendation by another judge on how to handle a motion to reconsider and on a request that implicates the record on a pending appeal. I review some superior court statistics from October 2016 (to anticipate appellate trends in 2017) and a proposed list of cases to be assigned for calendars in February 2017 and another scheduling issue for early in February 2017. I also review an email regarding a parking issue caused by a change in personnel in our building (and parking in courthouses is always at a premium) and for digital photos for new Division One judges. Although I had applied for and been nominated for a position as a justice on the Arizona Supreme Court, I had learned the day before that I had not been selected. Accordingly, I thanked individuals I had listed in my application and those who supported me, but let them know I was not successful. I receive numerous responses on November 29, 2016, and spend some nonwork time responding to their condolences. And although I can’t recall with certainty, I’m almost positive that I ended the day by cooking dinner for my wife.
Not every day is like November 29, 2016. And as I noted at the beginning, every day is unique. But the common aspect of my days, these days, is they involve reading, researching, thinking, writing, and, as vice chief judge, tending to administrative issues of all types, both planned and unplanned. Serving as a judge on Division One is fabulous; it is challenging and rewarding and, at the core, involves constant learning. Things typically do not get old or tired. And even time-worn issues present a challenge to try to figure out how we can do better and more for a court that already is strong and working well. As I tell almost anyone who will listen, I enjoy weekends, and I love spending time with my family, but I also enjoy Monday mornings. Along with the rewards of serving as a judicial officer, another joy of serving on Division One is working with fabulous people, on a daily basis, who want to do their best in the administration of justice. And my hope and expectation are that this will always be the case.
The views expressed are solely those of the author and do not represent those of the Arizona Court of Appeals.
1. See Samuel A. Thumma, Writing Appellate Decisions: Observations of a Rookie Appellate Judge, 53 Judges’ Journal, no. 1, Winter 2014.
2. See http://www.azcourts.gov/coa1/Oral-Argument-Recordings">http://www.azcourts.gov/coa1/Oral-Argument-Recordings (last visited Feb. 8, 2017).