ALBANY – The secrets to succeeding at the New York State Court of Appeals?
Tailor your brief to your main points, and don’t hit the judges over the head with the kitchen sink.
Act is if you are 100 percent convinced of your position, even if you aren’t.
Don’t interrupt judges, but don’t be afraid to politely set a judge straight if he or she is missing the point.
And keep your eye on the ball, remembering that you’re there to win for your client, and nothing else.
That was some of the advice from the court’s six judges who recently attended the annual Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium sponsored by Albany Law School and the Albany Law Review, where Chief Judge Jonathan Lippman mischievously promised to reveal the "secrets of Eagle Street."
For two hours, with prodding from Lippman, the judges on New York’s highest court offered an audience of students, law professors and practitioners candid insights on what the jurists are thinking about as they hear oral arguments, deliberate with their colleagues and write decisions in Court of Appeals Hall.
The symposium was taped by the law school and is available at www.albanylaw.edu/webstream.
"The rules of oral argument are not rocket science," said Judge Robert Smith, an experienced courtroom litigator before joining the court. "Prepare. Use good judgment. Answer the questions. Be respectful of the court, but do not be afraid to disagree, do not be intimidated. …What I am mainly saying is use good judgment, be smart. Don’t be dumb. Pick out your best arguments, not your worst arguments. Be a good lawyer. It is very easy to say, not so easy to do. I’ve argued a lot of appeals, and I probably violated every rule every time."
Chief Judge Jonathan Lippman and Judges Victoria Graffeo and Eugene Pigott, Jr. offer "secrets" at the Albany Law School forum. Linda Conley/Albany Law School
The judge said lawyers appearing before the court should know everything they possibly can about the case and the law and accentuating to the greatest extent possible the best arguments they have on behalf of their clients.
Smith is known to practitioners as probably the most intimidating judge on the court because of his habit of peppering lawyers with hypothetical questions about the cases they are arguing and the law the cases concern.
Smith said he and other judges ask questions that they "want to know the answer to, or, more often, questions that you think there is no good answer to but you want to be sure. That’s a lot of what I do."
He estimated that what’s said in oral arguments changes his mind about how he will rule on a case only about 5 percent of the time.
"Usually you come in knowing how you are going to decide a case, or at least thinking you know and usually you walk out thinking the same thing you did," Smith said. "But it does happen. I have been switched in the course of an argument. It’s almost always true that I come back off the bench understanding each case significantly better than when I went in."
Smith added that even if his mind is not changed by the pleadings of the advocates, he still finds oral arguments "immensely useful."
"Even in the 95 percent of the time when I come out thinking the same way that I did, if the arguments are good, especially the arguments of the losing party, then I really feel comfortable that I’ve confronted the tough issues and I know I’m right," Smith said.
‘The Brief Is the Deal’
Judge Eugene Pigott, Jr. said he avidly reads briefs, sometimes months before they are scheduled for oral arguments, to acquire a grounding in the facts and issues. Like Smith, Pigott said his mind is rarely changed by oral arguments, but that what he reads in the briefs greatly influences his decisions.
"I think briefs are 95 percent of all cases," he said. "The brief is the deal."
Pigott said he reads all the briefs "mainly because I don’t want to read the record," which can run to several hundreds or even thousands of pages. He urged practitioners to keep their briefs as sharply focused as possible.
"If you’ve got nine issues [in a brief] then you don’t have any," Pigott said. "That’s not literally true, but it looks like you’re floundering. But if you’ve got one, two, three, four [issues] and you really want to make it, I think that’s a smart idea…. Focus is the key on that. That’s the way you’re going to win. If you go all over the place, I think that’s a waste."
Judge Susan Phillips Read said the court is also very welcoming to amicus curiae briefs.
"I find them very valuable, almost invariably valuable," Read said.
Read described how the court assigns cases to judges—by a blind draw just after the judges hear oral arguments—and how judges sometimes end up in dissent on cases in which they were initially assigned to write the majority opinion but cannot convince their colleagues to accept their reasoning.
‘Do We Fight? Are We Civil?’
Lippman conceded that as much as he likes to promote how collegial the Court of Appeals is, the decision-making process is not always harmonious.
"What is the ambiance in the conference room?" Lippman asked Read. "Do we fight? Do we kiss? Are we civil? Are we honorable? What really happens around that round table?"
"All of the above," Read replied.
Court of Appeals Judges Jenny Rivera, Robert Smith and Susan Read. Linda Conley/Albany Law School
She continued, "There can be very contentious arguments, but I don’t think any of us are grudge-holders, or anything of that sort. We can really duke it out around the conference table and sometimes feelings do get a little bruised."
Read said she tries hard to hold the majority in as many cases she is assigned as possible, even if she does not always see eye-to-eye with her colleagues. That way she can avoid dissenting and shape majority rulings that would be broader if authored by other judges.
"If you can control the writing, presumably you can narrow it a little bit and you find that the advantages of controlling the writing and narrowing the writing outweigh any benefits of dissenting," she said. "There are risks in dissenting."
Asked to describe the process by which written decisions are reached, Judge Victoria Graffeo said four to six versions are typically circulated for feedback by the judge writing the majority ruling. She added that she has authored plenty of determinations that have gone through a dozen drafts or more.
"I like to sleep on it for a day or two, because I always find when I go back and read it again I can make it clearer… I feel very strongly that we are writing not just for lawyers but we are writing for the parties," Graffeo said. "It is important that they understand the logic of the decision, and that takes a bit of finessing."
Read and Graffeo agreed that while they try to retain the control over a decision that the judges in the majority exert, sometimes they must disagree publicly with their colleagues’ thinking.
"There are times when you absolutely have to express yourself and dissent," Read said.
Graffeo also stressed that the court is very cognizant of the fact that it is settling the law for the future rather than simply resolving the dispute for the parties. She acknowledged that the judges "do get emotionally invested" in cases and that sometimes the internal debates are intense.
"I might throw my pen around the room a few times," Graffeo said. "I might huff and puff….You just get very invested in what you think about a case. You drive home thinking about it. You wake up in the middle of the night thinking about it. You go to the gym and you are thinking about it. You live with these cases…. And sometimes you have pretty heated discussions with your own staff. It’s never come to fisticuffs, but…"
The court’s newest judge, Jenny Rivera, indicated that she is still learning the "secrets of Eagle Street" herself.
Rivera came to the court with a background unlike any other judge on the court in at least several decades: tons of academic experience but no judicial and limited courtroom experience. But she said she is finding many similarities between life as a scholar and life as a judge on a court of last resort, and stressed that diversity of experience makes the jurisprudential mosaic all the richer.
"One thing that is very clear to me…is the singular importance of having on a collegial court members who do have different perspectives, different experiences, because I think it enriches the dialogue and enriches the debate, and does bring something very special," Rivera said.
Former Chief Judge Cooke, for whom the annual symposium is named, was a 1938 graduate of Albany Law, an associate judge of the Court of Appeals from 1974-79 and chief judge from 1979-84.