For My Appellate Christmas Stocking

Since I started this column in March, I’ve tried to provide helpful insights into the functioning of the state and federal appellate courts, to warn practitioners of pitfalls, and to generally contribute to the overall improvement of appellate justice. I recently was told that I had been taking the entire task a little too seriously, although some of my columns did contain lighter elements.

As the holiday season approaches, I thought I’d end the year with a wish list of Christmas gifts that Santa might deliver to appellate lawyers and judges. Like a holiday elf, I asked both the gift givers and gift receivers what they might have in mind, with some interesting results.

In no particular order, here’s what the kids asked for, and the adults indicated they might give:

• A “time controller” was high on the list of both judges and lawyers. Lawyers wanted to be able to slow down time during the oral argument, so they could say more and more about their case. On the other hand, most judges wanted one to speed up the oral argument in the hopes that there might be a cogent point somewhere in what they were listening to. I was really surprised when I went on the bench to learn that Einstein was right – time is relative. It goes much faster when you’re giving an argument than when you are listening to one.
• Attorney R from Inver Grove Heights asked for a “baloney button.” He only wanted it at the table where he was sitting, but thought that it would be very helpful for him to be able to hit the button and have a loud horn sound when opposing counsel started to say something that was either completely unfounded in law or fact, or worse yet, absolutely contrary to what the record showed. As with all gifts, however, R ignored the fact that the judges might like the button more than the lawyers, and ask for one of their own.
• Lawyer D in Anoka asked for a “panel predictor” that would tell the lawyer which judges actually will hear the argument in the Court of Appeals rather than who the court initially says will be there. This would be helpful in preparing for oral argument. Not that an appellate lawyer would tailor his or her argument to a particular judge, but knowing the panel’s relative experience and exposure to particular areas of law might result in an argument that is either more or less detailed in its treatment of the issues. And it would cut down on the time spent explaining to your client why one or more of the judges you said would be there is a no show.
• Lawyer B in Minneapolis came up with a gift that judges and lawyers would all appreciate – a “gibberish to English translator.” Take that page or two in a brief that makes no sense to you, run it through the translator, and if there is any real meaning behind the words on the page, the translator will find it. Of course, there is always the danger inherent in any translation – subtle differences in the nuance and meaning of words and phrases may be lost when moving from one language to another. If you have any doubt about that, try running a phrase through Babelfish.com. Go from English to Hindi to Greek to Chinese to Italian and back to English, and see how near the final translation is to the initial statement. A lot like the old game of telephone.
• Barrister S from Edina asked for a new standard of review – “rejected as really dumb.” The problem with that gift, as I see it, is that it would be immensely popular with the judges, and would overwhelm all the other appellate standards.
• Another request from D in Anoka is an oral argument with unlimited time, but where the court is allowed only 12 questions (maybe for the 12 days of Christmas). Neither advocate could leave the argument until all 12 questions had been answered. This could extend beyond the holidays, and might turn into a popular game show style presentation. Think about it – during the argument, the advocate could phone a friend/lawyer as a lifeline. The appellate panel could be asked to “narrow the answers” to one of two choices or, my favorite, throw the question to lawyers sitting in the gallery. Another option might be to switch the question to opposing counsel.
• Judges being judges, their Christmas giving list was filled with socks and underwear instead of toys, and fruit instead of candy. One of the gifts for appellate lawyers to be opened next year (the proposed rule amendments are published, but won’t be final until the holidays are over) is an expanded addendum (the very short collection of pleadings and vital documents attached to a brief). However, the cost of that gift was the removal of the appendix.
• One of the gifts that they have already given to the appellate lawyers (the rule amendments are published, but not to be opened until the holidays are over) is an expanded addendum (the very short collection of pleadings and vital documents attached to a brief). However, the cost of that gift was the removal of the appendix – the large, unwieldy, often illegible, and typically redundant collection of record materials and pleadings that lawyers always put together at the last minute with the hope that it will somehow make their case look important.
• A judicial gift that will probably make everybody happy is the elimination of the $500 cost bond. In all my years of practice, I never had an occasion where the cost bond was more than an inconvenience. It didn’t cover actual costs, it was more trouble than it was worth to try to collect against the bond, and it was something that people always forgot about until the very last minute.
• Judge X from St. Paul asked for a simple gift – a button to silence the lawyer’s microphone when she says “Well, I wasn’t the trial lawyer, so I can’t answer that question.” Santa might make that present even better – hooking the button up to a trap door that opens under the lawyer. After all, if they can’t be of any help, no need for them to be around.
• Judge J. in St. Paul also had a request. She asked for a “repetition reducer” button that would automatically highlight areas in a brief that are repetitious and can be skipped without losing anything, so she could cut her reading time in half or more.
• Finally, a great holiday suggestion for both lawyers and judges was to replace oral “argument” with “coffee and pie sessions” for the holidays. Each attorney present would bring a pie, and advocates and judges would sit at a table, eating pie and drinking coffee as they discussed the case. Of course, appellate lawyers would soon be judged on their ability to bake, rather than cook up answers.

I’m sure that there are any number of other really wonderful gifts that I haven’t listed. But like most Christmas lists, this one really overlooks the obvious. It’s family and friends that make the holidays. By the same token, it is the excellent judges and lawyers in Minnesota that make our court system what it is. I’ve already received a gift by being able to practice in a legal community that values its courts and the process. Happy New Year.

Eric Magnuson is a partner at Robins, Kaplan, Miller & Ciresi and served as chief justice of the Minnesota Supreme Court from 2008 to 2010. He can be reached at ejmagnuson@rkmc.com.

This article first appeared in the December 16, 2013 issue of Minnesota Lawyer.
Reprinted with permission of Minnesota Lawyer ©2013