Justice David Saxe (NYLJ/Rick Kopstein)
In a previous essay (Saxe, What Makes a Good Appellate Judge?, NYLJ, Dec 2, 2013 at 6, col 4), I offered thoughts on the qualities of good appellate judges. That led me to consider the characteristics of the job itself, compared to the job of a trial court judge, and ask whether a successful trial court judge would necessarily enjoy and prosper at an appellate court.
It is natural for trial court judges to aspire to the appellate court, which is a promotion, with greater pay, prestige, freedom and autonomy. But satisfying your ambitions can bring you to a position where the work fails to give you the same satisfaction as your former position did. Although you will be clearly capable of performing the work required, it may be less pleasant, more frustrating or even annoying. People do not do their best work when they do not enjoy what they are doing.
My own experiences at the Supreme Court in New York County and then at the Appellate Division, First Department, have shown me that an appellate court may not be the best fit for every judge, no matter how capable and highly qualified they may be. The differences between the work at the two courts are considerable, and not all of them are obvious.
The most noticeable difference is the pace. If you are happiest in an active, frenetic environment, if you thrive on the tumult of a trial court, the solitude and the slower pace of the appellate court might not suit you. At the Appellate Division there are no surprise TRO applications, no last-minute hearings, no TAP referrals of cases ready to start trial the moment your current trial is over. The deliberative nature of the appellate court imbues almost every process and procedure; seldom is anything handled quickly. In fact, sometimes the court’s deliberate approach may sap any sense of urgency or enthusiasm you initially feel about a case.
For instance, if you happen to find a particular appeal intriguing or compelling, the odds are that you will not be the assigned judge on that matter, and may have to wait a considerable amount of time while the assigned judge holds the matter, before the possibility of addressing that issue arises.
Even then you may not be entitled to address the issue, either because you agree with the position taken by the assigned judge, or because the obligation to prepare the opposing writing is assigned to another judge by court procedures (“How We Operate: An Inside Look at the Appellate Division, First Department,” NYLJ [Online], May 13, 2009). If it becomes your turn to put your views in writing, your original enthusiasm may have waned. And even if you are the assigned judge, and you consider an appeal to be pressing, any efforts to prepare your proposed decision speedily may be wasted, since you have no control over your colleagues, who may take as much time as they choose to review or respond to your writing.
The reduction in stress at the appellate court might seem appealing but that calm could seem dull or stifling.
Another difference is that an appellate court judge will no longer have his or her own courtroom and attached robing room. The courtroom at the First Department, is majestic, but it isn’t yours. You share it with your colleagues and preside in it only as part of a panel on your assigned calendar dates. While some courtrooms, such as some of those at 60 Centre Street are beautiful, and sorely missed by newly elevated appellate judges, even those courtrooms that are not so beautiful still serve as the trial judge’s fiefdom.
The pleasure of controlling and running your own courtroom can be immense. In a trial court, you are the conductor, whether you are presiding over a trial or handling a pretrial conference or motion calendar. You decide who will be heard, when, and for how long; you settle cases; you oversee discovery. You are aware of, and keep track of, everything that goes on, sometimes simultaneously. Most importantly, you act independently. It’s exciting.
As an appellate judge, the only aspect of your work life in which you conduct anyone else’s activities will be in your own chambers, with your staff of two. The bulk of your time is spent at your desk in your chambers, reading briefs, records, court attorney reports, cases and statutes. You think, analyze and write. It can be gratifying, but you might not call it exciting.
The pressures of productivity requirements are different, too. Trial judges are often frustrated by a lack of time in which to address complex legal issues. Court administrators, driven by statistics, press judges to conduct ever greater numbers of trials and conferences, leaving them little time off the bench in which to craft opinions. While workloads at the Appellate Division have also increased dramatically, I imagine that the workings of the Appellate Division and its justices are not that different from the way things worked 50 years ago. Finding time to craft opinions is less of a problem at the Appellate Division, at least when the total number of justices is sufficient to keep the workload reasonable.
The satisfactions and frustrations of writing judicial opinions is different in the two courts. All judges will derive pleasure from crafting well-reasoned and well-written opinions. At the appellate level there is additional satisfaction in knowing that your work will garner a high degree of respect and have substantial influence on the development of the common law. Nevertheless, that satisfaction may be muted because while the power of establishing the law is great, it is not yours, so much as it belongs to the court. When you read reports about a decision you authored, you may find that authorship is attributed to the court.
In other ways, there may be greater satisfaction in writing decisions as a trial court judge. Although you will always be mindful of appellate precedent, you can express yourself freely, unconstrained by anything other than a watchful law clerk keeping an eye out for excessive rhetorical flourishes, hyperbole and other literary idiosyncracies. At the Appellate Division, after you have written what you believe is a particularly brilliant and scholarly opinion on an matter of first impression, your colleagues may not be impressed with your legal acumen or literary style. They may offer suggestions for “strengthening” your work, which in your eyes serves only to weaken the power of your rhetoric or style. It is possible that they have a point. Or, perhaps, they may not be ready to take the strides you are willing to take or accept the way you are stating your views. Unless you are happy making your writing a concurrence, you may have to adjust your writing to suit your colleagues.
In large part, appellate work feels solitary and isolated. Of course, judging is at its core a lonely business. However, the nature of the isolation is different in the two contexts.
Among the judges in a trial court, there is not a lot of interaction during the work day. You’ll never have the occasion to watch colleagues work, and will seldom engage in substantive discussion regarding your work. But, if you are lucky enough to find real friendships with some of your colleagues, there will be nothing in the nature of your work to interfere. Moreover, although there is a necessary degree of distance between trial court judges and the lawyers who practice in the court, it doesn’t prevent a comfortable level of social interaction between judges and lawyers outside of the formal courtroom procedures.
The converse is true at the appellate level. A vital element of the job at the appellate level involves interacting with your colleagues; both on the bench and in the process of crafting opinions you acknowledge and respond to their thoughts and views. You can only truly fulfill your function through consultation, acting as part of a larger entity. But, as much interaction as there is between appellate court colleagues, you may find it difficult to form lasting personal relationships. Surprisingly, and despite the best of intentions, friendships can be tested when friends are preparing opposing writings on an appeal. People like to think they’re bigger than that, but on hard-fought cases, a degree of strain or tension can arise, and that tension can linger even after you are finished with the case. At the Appellate Division, we make sure to maintain cordiality among ourselves; daily lunches together in our dining room can help repair frayed feelings and egos, but sometimes a bit more time may be needed for tensions to subside. And at a visceral level, a judge may become less open, more restrained.
The ability to make and maintain connections with colleagues in other courts is also impacted. Appellate judges often discover that they need to be more careful about fraternizing with colleagues whose decisions they will be reviewing, lest such a friendship produces its own conflicts and problems. Even at bar functions, the brief encounters you had with lawyers and other judges when you were a trial judge become briefer, because the organizers of these events seat the appellate judges on the dais, often with colleagues from their own court. On the other hand, if you find pleasure in being sought after by lawyers, a position at the appellate court will increase those occasions many times over. You will be approached and invited to all sorts of bar events, and any overtures by you will be warmly welcomed.
When it comes to interactions with the public in the course of the work day, the opportunities afforded to a trial court judge will be far more satisfying to a judge who thrives on social interaction. There are plenty of people around a trial court judge; lawyers, litigants, witnesses, insurance representatives, jurors, courtroom staff and administrative personnel. While much of that is the formal interaction of courtroom business, a great deal of it is more informal, more casual. And, at least in my experience in Manhattan, trial court justices even have better opportunities to enjoy friendly informal exchanges that naturally occur on a nice day. Stand outside 60 Centre Street at lunch hour, and you can’t help but bump into lawyers with whom you may strike up a friendly conversation.
The appellate judge interacts directly with lawyers only in two ways: while on an appeals panel hearing argument, approximately one day per week, and while assigned to hear interim stay applications, approximately one day per month. At oral argument the judge may address questions and comments to a lawyer, but even those remarks function less as the expression of an individual than as issued by the bench.
I do not mean to create a negative impression about this absolutely wonderful place to work. I thoroughly enjoy my work at the Appellate Division. I cannot think of any judicial assignment, including the Court of Appeals, that would be more satisfying. We regularly get interesting and varied appeals, particularly since Supreme Court, New York County, is a magnet for all sorts of complex and fascinating litigation. In many instances, we play an important role in creating the law of New York. I enjoy, as well, the give and take of discussions among my colleagues as well as the piercing interchanges with well-prepared lawyers at oral argument.
As pleasant as it is to be treated with the degree of respect generally shown to a justice at the Appellate Division, and to do work that can be fascinating, the promotion to the appellate court may involve a real loss of control, enjoyment and camaraderie. The qualities of the trial court position that will be left behind should be squarely faced by anyone considering the move.
There seems to be a universal tendency to elevate people who excel at their jobs, into jobs that may not satisfy them. Excellence as a trial court judge may not be the best qualification for the appellate court bench. We want judges to be promoted into jobs they will enjoy, from which they will derive satisfaction and in which they will be more productive. At the very least, trial judges should carefully consider whether the appellate position would suit or satisfy them.
David B. Saxe is a justice on the Appellate Division, First Department.