Appellate Law

Does it Matter Who?s On Your Panel?

By Greg May

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

Full post as published by The California Blog of Appeal on October 31, 2008 (boomark / email).