I thought that it might be useful to offer some remarks and personal observations on the topic of judicial collegiality in the context of my participation in an intermediate appellate court, the Appellate Division, First Department. At the outset, I cannot emphasize strongly enough the importance of encouraging and developing collegiality in appellate courts.

Commentators who list necessary characteristics for appellate judges often focus first on writing ability and collegiality. 1 While writing ability is fairly self-explanatory, the quality of collegiality, which is uniquely critical to the functions of an appellate judge, warrants elaboration. It has been said to involve the ability to understand and respect differing views and to be able to give and receive constructive criticism with grace. 2

The importance of collegiality is well expressed in the philosophy of Judge Hugh Jones, a former judge of the Court of Appeals, who recognized that the appellate process is a pursuit not of individual achievement, but of institutional responsibility to articulate the law. 3 Judge Jones said that part of being an effective appellate judge was “the submergence of individual image and status to the good of the Court.” 4

When a case reaches an appellate tribunal, there is a need for what amounts to dialectical examination of conflicting reasoning. 5 That is, the appellate court attempts to arrive at the truth, or at least the legally-sound result, by a dialectical process in which the conflict between opposing views is used to clarify the strengths and weaknesses of each in an effort to find the best resolution. It is particularly important that this process be undertaken in a collegial atmosphere because this type of examination can become sharp, passionate and sometimes personal. The overall umbrella of a collegial environment makes it possible for an appellate court which is actively involved in this dialectic process to perform its role more seamlessly: that is, to arrive at an authoritative resolution of the dispute before it and provide an authoritative statement of law for the future. 6

Of course, as noted by one authority:

. . . courts may never be truly collegial bodies. Judges today come from vastly different professional and personal backgrounds; their experiences are as diverse as the society in which they live; they are positioned all across the ideological spectrum. Many crucial controversies engage our innermost feelings. We care too much to sacrifice our duty to reach a just result to simple camaraderie. . . . So it is not surprising that in the heat of our deliberations, strong – even bitter – clashes occur and sometimes leave a corrosive residue. The most judges can probably demand of one another is a sincere commitment to civility and self-restraint.7

So, collegiality doesn’t mean that we are all friends. We are not. But, our common interest in getting the law right helps us through our personal voices and ideological predilections and to listen, persuade and be persuaded, in an atmosphere of civility and respect. 8 The process of collegial adjudication helps to create the conditions for principled decision-making, by allowing all points of view to be aired and considered, 9 and through this process, the role of partisan politics and personal ideology may be reduced by improving dialogue and communication. 10

When there is an atmosphere of collegial decision-making in a court, divergent viewpoints need not be suppressed In fact, in a collegial environment divergent positions are more likely to receive full consideration, because judges are comfortable engaging in the deliberative process with one another. 1 Some may think that when members of a court have strong collegial relationships, they may be reluctant to challenge the positions of colleagues, and may in fact join in opinions with which they disagree in order to preserve personal relationships. I have found, to the contrary, (as have others) that collegiality allows judges to offer opposing positions freely, with the expectation that they will be considered with respect, which in turn improves the work product of the court. 12 A developed environment of collegiality respects the independence of each judge, so that appellate judging is, in the end, the product of the independent exercise of thought by each judge, tempered by the collegial environment of the group.

Dissents are compatible with a collegial court environment. While trivial disagreements or writings that are flip, or disrespectful or merely quarrelsome should not see the light of day, 13 separate writings, when well crafted, improve the performance of the majority. As Professor Karl Llewellyn noted, “[T]he dissent, by forcing or suggesting full publicity, rides herd on the majority, and helps to keep constant the due observance of the law.” 14 Well reasoned dissents tend to force the majority to deal with the issues raised in dissent and exert a pressure on the prevailing side to resolve those issues in a principled way. 15 Of course, the converse is true as well: a well-reasoned majority opinion helps a dissenter pinpoint the exact areas of disagreement.

Let me examine with you the adjudicative process in our court and see how collegiality operates within that process.

It manifests itself first in oral argument, especially where panel members avoid set speeches by counsel in order to use the allotted time to focus on the issues they view as problematic, posing piercing questions to counsel. When the bench is collegial, members permit a colleague to finish a line of questioning instead of jumping in and interrupting with an entirely new line of inquiry to the bewilderment of counsel and the annoyance of the interrupted colleague. In fact, in a truly collegial atmosphere, other colleagues may try to draw out counsel who may not be properly or adequately responding to a colleague’s question.

At the next stage, the conference held after argument, collegiality is again tested; views are expressed by each judge, a tentative vote is taken and the majority writing is assigned in accordance with the court’s practices. During this stage, sharp differences among judges are likely to emerge for the first time, and it is important that the discussions follow principles of collegiality: views should not be put forth in a personal, antagonistic or superficial way.

The management of the conference in our court is the task of the justice presiding, the most senior member of the bench. It is sometimes a daunting task: to allow an open expression of viewpoints but at the same time look for some glimmer of unanimity or areas of agreement. The success in this task depends, of course, partly on the composition of the panel and partly on the skill of the justice presiding that day, but even more importantly on the level of collegiality that embraces the workplace.

Finally, an opportunity for collegiality arises when the assigned writing is circulated. If the author seeks unanimity from his colleagues, the writing may have to be modified to win acceptance by other members of the panel who may see a proposition advanced as overbroad or insufficient. Sometimes, panel members may agree with the result, but are concerned about the writing’s style. For example, if they find a writing too florid or dense, they may propose the use of a simpler writing with plainer language. They may feel that an element of the necessary logic has been omitted, or that a legal assertion was unnecessarily included. All the judges of our court understand and appreciate that they are involved in a group process in which they must come together to some degree and submerge their egos a bit to produce an opinion of the court that will properly decide the case and correctly influence the outcome of future controversies.

On a more basic level, most, if not all of us, eat daily at a judges’ lunchroom. Breaking bread with a colleague and bantering about politics, sports or just the daily buzz around the court tends to soften the hardest edges and feelings that may have developed during a contentious period of competing writings.

This is collegiality in action. Our court, which has traditionally been a collegial body, has recently become even more so under the deft oversight of Presiding Justice Jonathan Lippman. Situations in which disagreements give way to discourteous treatment, or where one justice gives another justice the “silent treatment” after a vote, are a thing of the past. Justice Lippman’s view of the court as an extended family and his warm embrace of his colleagues has fostered an environment of mutual respect which improves us and our work.

David B. Saxe is an associate justice of the Appellate Division, First Department. The article is based on remarks made at a recent meeting of the Committee on the Supreme Court of the New York County Lawyers’ Association.

Endnotes:

1. See American Judicature Society Handbook for Judicial Nominating Commissioners, cited in Goldschmidt, “Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?: Merit Selection: Current Status, Procedures, and Issues,” 49 U. Miami L. Rev. 1, 29 [1994]

2. Goldschmidt, supra at n214; see also Coffin, “On Appeal: Courts, Lawyering, and Judging” 228 [W.W. Norton 1994]

3. Richard Wesley, “Hugh Jones and Modern Courts: The Pursuit of Justice Then and Now,” 65 Alb L Rev 1123, 1125 [2002]

4. Id. quoting Jones, “Cogitations of Appellate Decision-Making,” 34 Rec. Assn. B. City of NY 543 [1979]

5. Jones, “Multitude of Counselors: Appellate Adjudication as Group Decision-Making,” 54 Tul L Rev 541 [1980]

6. See id.

7. Wald, “Essays Commemorating the One Hundredth Anniversary of the Harvard Law Review: Some Thoughts on Judging as Gleaned From One Hundred Years of the Harvard Law Review and Other Great Books,” 100 Harv. L. Rev. 887 [February, 1987]

8. See, Edwards, “The Effects of Collegiality on Judicial Decision Making,” 151 U. Pa. L. Rev. No. 5 1639, 1645 [2003]

9. Edwards, supra at 1645

10. Id. at 1641

11. Id. at 1646

12. Id.

13. O’Connor: “The Art of Collegiality: Creating Consensus and Coping with Dissent,” 83 Mass L. Rev 93 [1998]

14. Llewellyn, “The Common Law Tradition: Deciding Appeals,” 26 [1960]

15. O’Connor, note 11, supra at 95