Linda Morkan ()
An appeal isn’t just the second take on a legal dispute.
According to appellate court judges and practitioners alike, appellate practice in Connecticut requires a specialized form of advocacy that is not understood by all litigants who are representing themselves and even by lawyers who handle the occasional appeal.
Appellate Court Chief Judge Alexandra D. DiPentima said there is a major lack of understanding that the appellate courts are not retrying cases but “reviewing to see if there were any errors below.”
“There are times we get very able trial lawyers in front of us arguing as if we are a jury,” DiPentima said.
The trial court is like a referee down in the football stadium that can see the plays up close, said Brendon Levesque, a partner at Horton, Shields & Knox whose practice includes appellate law.
But the appellate courts are like the referees up in the booth. They have a “very, very high standard” for overturning the lower court’s call, he said.
He has to explain to clients who want to retry their cases on appeal that it is not the function of the appellate courts.
Just like a great trial lawyer needs to know the rules of evidence, a great appellate lawyer needs to know the rules of civil procedure, said Linda Morkan, counsel at Robinson & Cole and cochair of the Connecticut Bar Association’s appellate advocacy section (but spoke in her individual capacity).
DiPentima said the Judicial Branch is going to be updating a handbook to help the occasional appellate lawyer and to help pro se litigants understand that the rules on appeal are different from trial court rules.
The Connecticut Law Tribune recently examined what may be the most comment lament of litigants when they appeal their cases: “When will the court decide my case?” Between 2005 and 2010, the average time between oral argument and the publication of decisions in the Supreme Court was 157 days, according to the Judicial Branch. Over the next three years, the average was 158 days.
During the 2013-14 term, which is officially drawing toward an end, the Supreme Court seems to have issued opinions faster than in the recent past, according to the Law Tribune’s analysis.
But the length of time it takes for cases to come out is not the only factor that mystifies parties and their lawyers about the appellate court process, judges and practitioners say.
One of the most frequent questions people ask are how cases wind their way through the Appellate Court and the Supreme Court, Chief Justice Chase Rogers and DiPentima said in a recent joint interview.
Cases come to the Supreme Court because the justices grant a petition for certiorari for reasons such as there is a split on a legal issue between the superior courts, Rogers said.
A panel of Appellate Court judges has the responsibility to see if some of the intermediate appellate court’s cases would be more appropriate in the Supreme Court.
The chief justice also receives petitions for cases involving urgent matters of public interest, such as election cases, under Section 52-265a.
Section 52-265a cases and cases involving child protection get prioritized in being heard and decided, Rogers and DiPentima said.
Otherwise, cases get put on the list as they become ready and “we just go down the list,” Rogers said.
In the Appellate Court, child protection cases are scheduled as soon as the briefs are done and even before they are docketed, DiPentima said.
There also are motions for transfer by the parties to come to the Supreme Court from the Appellate Court, according to the chief justice.
Both Morkan and Levesque said they would rather have their cases transferred to the Supreme Court, especially when it’s a case the Supreme Court will likely take up because it involves an issue of first impression or a split of authority among the superior courts.
“It’s an economics and efficiency decision,” Levesque said.
The transfer of cases also means the Supreme Court, while bound by precedent, could change the law, but the Appellate Court can’t, Morkan said.
“Our Supreme Court makes sure its docket is full and that alleviates some of the burdens and crowding at the Appellate Court,” Morkan said.
Rogers and DiPentima in their respective courts make the decision on who authors a majority opinion. Both said workload is the primary factor in deciding which colleague will be assigned a case to write.
Both courts also hold their judicial conferences on cases after oral argument, the two court leaders said.
While some jurisdictions have the practice of holding judicial conferences before oral argument, Rogers is of the opinion that it makes more sense to hold the conferences afterward because “a lot can happen during oral argument.”
Both Morkan and Levesque said the brief is the most important part of appellate advocacy, and oral argument provides the opportunity to answer questions.
Oral argument can be extremely important in some cases and less important in others, Rogers and DiPentima said.
“There are times when the oral argument will change my mind and other judges’ minds,” said DiPentima.