Tuesday, March 3, 2015

Observing and Learning from the Court of Appeals

Lessons Learned Studying New York’s High Court
By Michael L. White
Michael White, a 2014 cum laude graduate of Albany Law School, graduated magna cum laude from the State University of New York at Plattsburgh with a Bachelor’s degree in Political Science.
While in law school, Michael served as the Executive Editor for Symposium for the Albany Law Review. He also won the award for best oral advocate in the Domenick L. Gabrielli Appellate Advocacy Moot Court Competition, and he was selected to represent the law school in a national moot court competition in Virginia. Additionally, he worked for the United States District Attorney’s Office for the Northern District of New York and he completed an internship with the City of Albany’s Law Department.
Michael has begun his legal career at Martin, Harding & Mazzotti, LLP, which he views as a great fit for his experience and his passion to help people—especially in times when they need an advocate most to protect their rights.
He prepared this essay based upon an independent study he undertook in his last semester in law school, part of which involved joining the Court of Appeals Intensive seminar's visits to the state's high court and meeting with its Judges.

This paper will highlight the lessons that I learned in my final year at Albany Law School studying effective oral advocacy techniques and the judicial process.  Much of what I learned came from an independent study I undertook which included visits to New York’s highest court, with the Court of Appeals Intensive seminar, in my last semester at the law school. Those visits gave me the opportunity to observe oral arguments and listen to Court of Appeals judges who spent time with the class explaining what they perceive their role to be as Judges on the high court.

While speaking to our class, Chief Judge Lippman made an interesting point about the effect advances in technology have on a judge’s role in shaping or interpreting law.  Chief Judge Lippman stressed the importance of how societal changes, technological advances, and other policy factors should all be considered when a judge, particularly on a state’s high court, is deciding an issue.

Take for example the Matter of Empire Center for New York State Policy v. New York State Teachers' Retirement System case (23 NY3d 438 [2014]), where at issue was the disclosure of the names of public employees who received a pension from the state.  To de-emphasize the privacy concerns, some of the judges were making a point through their questioning that most of the information that was sought to remain exempt from disclosure might already be searchable on the internet.  The judges seemed to be aware of the privacy concerns, but also cognizant of the lower expectations of privacy people now have with the advent of Facebook, Twitter, and other social media sites.  This balance between the cherished right to be “let alone” and the emerging world of social media reminded me of one of Chief Judge Lippman’s most famous and oft cited rationales.

In People v. Weaver (12 N.Y.3d 433 [2009]), a significant criminal procedure case centered on continuous GPS tracking, Chief Judge Lippman speaking through the Court of Appeals, explained:
Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips and indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.  What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, no simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits. (Id. at 441–42.)
On one hand, technology can help push the law in a direction that protects a privacy interest. On the other, it can move the law away from protecting a privacy interest.

The most important lesson to be learned from the foregoing paragraph in Weaver would seem to be the importance to know how a particular judge will view this issue, i.e., the effect and force of policy. In fact, a running theme throughout each presentation, sit down with a judge, and classroom conversation was the importance of knowing the bench and the individual judges comprised of the court.

Furthermore, it is not only important to know how a judge will likely decide an issue, but also it is significant to take the time to understand the judge’s background and approach to the judicial process.  Chief Judge Lippman spoke about what he perceives a judge’s role to be in deciding a case.

He emphasized that a judge should go beyond the basic black letter of the law and understand the policy effect a ruling may have by taking into consideration external societal forces.
In other words, a judge must be mindful of the consequences an opinion or decision will generate.  In this role, Chief Judge Lippman acknowledges that judges do shape the law and do not merely interpret the black letter of the law.

This approach seems to be in contrast to how Judge Robert Smith described a judge’s role—so-called strict constructionism.  Judge Smith adopts the approach that judges should simply look to the law to reach a result, and not be overly concerned with the policy effect.  After observing oral arguments, however, I began to question whether or not Judge Smith really does not care about “policy.”

Most of his questions come in the form of a hypothetical.  A hypothetical question—a question about what would happen if--necessarily begets policy considerations and invokes a consequence-conscious line of questioning.  This proves, at least in part, that even the judges who stress that they look no further than the black-letter of the law itself, do take certain policy factors into account.  And, to this end, a practitioner must keep in mind, and advocate to the judges, the reasons why an answer to an issue is the best choice when considering a multitude of factors, not just the “correct” or most “accurate” answer by the letter of the law itself.

Another important observation I made during the independent study was the judges’ awareness of New York City’s status as the financial capital of the world.  Specifically, Judge Victoria Graffeo mentioned that, for certain financial-related cases, a factor that she keeps in mind is the intention to preserve New York City as an international financial capital.  I found this to be slightly surprising since the judges, in essence, might be placing a priority on keeping New York City’s reputation as a financial capital over the respective rights of the parties.  Again, another result-driven factor that is considered.

Even more to the point, this demonstrates two important aspects of oral advocacy before an appellate court: knowing the judges, and understanding the larger looming policy effects a decision might have.  A practitioner who does not take the time to learn the judges’ judicial philosophies proceeds at their own peril in oral argument.

While listening to the Court of Appeals judges candidly explain their perceived roles in a case, I quickly learned that effective oral advocacy requires more than just a strong knowledge of the law and facts.  More significantly, to hear the judges characterize their roles in drafting an opinion as shaping the law, or even making law, demonstrated to me the importance of understanding who the judges are and what result a case may have on a larger scale.

There seems to be a misconceived notion that judges are merely stoic interpreters of law.  However, after taking part in the independent study, I found this simply to not be true.  Underlying the decisionmaking and opinion drafting process are the judges’ own feelings about the law, policy, New York City’s status as an international financial market, and New York’s reputation as a leader and innovator in law.

During this past semester, the judges explained the process, significance, and their perceived roles in oral arguments.  Judge Smith explained that oral argument does not weigh heavily for him in his decisionmaking process.  He approximated that the oral arguments amount to roughly five percent of his decision, whereas the submitted briefs and record on appeal make up the bulk of his evaluation.

Conversely, Chief Judge Lippman explained that he, and some of the other judges, will use the oral argument as a time to address misgivings held by colleagues who may not be on their side of an issue or decision.  Chief Judge Lippman stressed further that oral argument is an opportunity to get the votes of judges who may not yet know how they will vote.  He also explained the importance of listening to the questions that the judges are addressing to the opposing sides of the issues.

Here, as Chief Judge Lippman emphasized, an attorney in front of the court can learn which particular issues are in contention between the judges, the particular issues that are especially significant to the court, which judges are most likely on their side, and which judges might be persuadable. Overall, Chief Judge Lippman expects the attorneys to have a conversation with the court about the issues and the law.

Moreover, Chief Judge Lippman also discussed the importance for the court to have concurring opinions and to not simply strive to speak with “one voice.” I found this interesting because I had been under the impression that a unified court with a unanimous decision was best for the law.  But after listening to Chief Judge Lippman explain his views on unanimous and divided decisions, my opinion changed.

The Chief Judge explained that the law is at its best with divided decisions because judges are then free to push the law in the direction that they see best, rather than just conceding to a watered down unanimous opinion.  Chief Judge Lippman discussed that his approach is to encourage his colleagues to write separately if they feel strongly enough, instead of just joining an opinion.  He said that this is where the law is at its best with better rules and better reasoned results.

This approach was in contrast to his predecessor—Chief Judge Judith Kaye.  As Chief Judge Kaye has herself made clear, her approach was to strive to have the court speak with one voice. (See e.g., William Glaberson, Dissenting Often, State’s Chief Judge Establishes a Staunchly Liberal Record, NY Times, Oct. 10, 2011, at A16.) This approach places more emphasis on a unified court speaking with one voice, with any opposing views restrained.

In addition to Chief Judge Kaye, this approach or philosophy is apparently that of Ohio Supreme Court Chief Justice Maureen O’Connor. At the Albany Law Review’s 2014 State Constitutional Commentary Symposium, Chief Justice O’Connor discussed the importance and significance of a unified opinion, especially on issues of statewide importance.  To her, having a unanimous opinion trumped shaping the law with a sharper opinion that might result when opposing views are aired in a concurring or dissenting opinion. (Symposium transcript at: http://www.albanylawreview.org/Articles/Vol77_4/77.4.1247%20Exceeding%20Federal%20Standards%20Transcript.pdf.)

This divide in judicial philosophies, speaking with one voice versus a few voices, is more than just academic. It serves a practitioner well, when advocating before a court, to know the court’s preference.  Will the court strive for a middle ground to get a unanimous opinion?  Or will the court create fine, distinct lines in the law by welcoming opposing opinions?

An attorney before a court like the Ohio Supreme Court is most likely best served to advocate strongly for a more inclusive result, stressing the policy, and emphasizing the level of statewide importance that a particular issue may garner.  By contrast, an attorney before the New York Court of Appeals may be more effective by advocating strongly for a more distinct resolution of the issues that the court is facing.

In sum, I have learned through the independent study that it is not only important to know the issues and the particular judges, but it is also equally as important to know the judicial philosophies behind each particular bench.