March 5, 2014 – Wouldn’t it be great to know how judges think? Aside from the question of whether a telepathic lawyer must disclose that power under ethical rules, the mind-reader could give judges exactly what they want to make their arguments heard.

But most lawyers are not mind-readers. So what’s the next best thing? James Stanton, a lawyer and former judge in Texas, says learning as much about judicial philosophies, pet peeves, or preferences plays a part in helping lawyers make persuasive arguments.

“Judges share the same goal of achieving a just result consistent with the law, but no two judges do it exactly the same,” said Stanton, who recently published a book titled What Judges Want: A Former Judge’s Guide to Success in Court (2nd Ed. 2013)

“The most central piece of advice that I could give appellate lawyers is the need for focus in their arguments. An appeal is not an opportunity to throw everything against the wall and see what sticks. … [F]ocus on the issues that are the strongest in the case and frame them in a way that is succinct. We have a lot of reading to do in this job, so the quicker a lawyer can get to the point the better.” – Judge Diane Sykes, U.S. Court of Appeals for the Seventh Circuit

“Like any audience, judges view a case through the prism of their own personal and professional background,” he said. “Learning the preferences of a judge provides an opportunity to capture their full attention and, in turn, be a more effective advocate.”

This summer, Wisconsin lawyers will have an opportunity to learn about judicial philosophy and other insights from two federal appeals court judges at the State Bar of Wisconsin’s 2014 Annual Meeting and Conference, June 26-27, in Lake Geneva.

Diane Sykes and David Hamilton, both judges on the U.S. Court of Appeals for the Seventh Circuit, will co-present, "Methods of Appellate Judging: Textualism, Originalism, Pragmatism, or Letting a Thousand Flowers Bloom?"

Both will discuss judicial philosophies in the present day and current legal developments, just as the U.S. Supreme Court ends its 2013-14 term.

As a preview, State Bar Legal Writer Joe Forward caught up with both judges to learn more about them, their work on the bench, and procedures at the Seventh Circuit Appeals Court. Hamilton and Sykes also provide a little advice for attorneys.

About the Judges

Appointed by President George W. Bush, Judge Diane Sykes took the federal appeals court bench in July 2004. Before that, she served five years as a justice for the Wisconsin Supreme Court (1999-2004), and was a circuit court judge for Milwaukee County for seven years (1992-1999). She graduated from Marquette Law School in 1984.

Judge David Hamilton took the federal appeals court bench in 2009 after his appointment by President Barack Obama. Prior to that, Hamilton was a judge and chief judge for the U.S. District Court for the Southern District of Indiana (1994-2009), a President Bill Clinton appointment. He graduated from Yale Law School in1983.

Judge Sykes, how is your work at the federal appeals court level different from the work as a justice for the Wisconsin Supreme Court?

“The most obvious difference between the state supreme court and the federal court of appeals is that the state supreme court is a court of permissive review and only takes cases of statewide import. The federal court of appeals is comparable to the intermediate court of appeals in the state system in that we take everything that comes to us from the trial courts.

“So we have a much heavier merits docket at the court of appeals, and it really runs the gamut. We hear cases of significant import, not unlike the cases that I was hearing as a state supreme court justice, but we also hear a lot of routine cases, and many cases in between. That’s the primary difference.

“There’s also a difference in pace. Not every case gets the same scrutiny. We have to triage the cases when they come onto our calendar and decide which ones deserve a great deal of our attention and which ones can be decided more summarily.

“Of course, every case heard by the state supreme court gets a great deal of scrutiny from every one of the justices. Here, it’s a different pace, a different volume, and a different degree of inquiry depending upon the case’s complexity and how important the issue is, and also whether it’s going to be orally argued or decided on the briefs.”

Judge Hamilton, you went from a district court judge to an appeals court judge. How was that transition?

“You are dealing with a lot of the same legal issues, so in that sense the work is familiar. What’s quite different for me is the process and decision-making on a multi-member court, in addition to a somewhat different perspective.

“When I was a district judge, I was not setting precedent. I was making decisions for the parties before me. I would sometimes hope that my reasoning would be persuasive for others in other cases, but that wasn’t the focus of the work.

“In the appellate court, there are a lot more situations where the district court may very well have reached the ‘correct’ and just decision as between the parties, but if the court got there by an erroneous route, then it may be necessary to reverse.

“Fairly often, there are situations where it’s not clear to me that we are reaching ‘the just result’ between the parties but we are reaching what I think is the right result under the law. A lot of times, our decisions cannot accommodate the equities as between the parties because the precedential rules of law must prevail.”

Judge Hamilton, what do you enjoy about your current job?

“I enjoy the challenge and reward of working with colleagues to try and make federal law work as well as possible within our circuit. It’s intellectual fun. My colleagues on the court are talented and dedicated. We don’t always agree, but we respect each other, we listen to each other, and we try to find the best common ground we can.”

Can you tell me about the decision-making process, Judge Hamilton?

“In our court, the preparation for oral argument is done separately. Each judge on the panel prepares separately, developing preliminary views and coming to oral argument with ideas and questions that we often explore during the oral argument itself. Immediately after arguments end for a day, the three judges meet privately and discuss the cases.

“The junior judge speaks first, and that’s usually me at this point, and we talk through each of the cases and take preliminary votes or state preliminary views and try to explore any disagreements to see whether there might be common ground or not. Then the presiding judge on the panel makes the writing assignments for preliminary drafting of the opinion.

“The conference and the preliminary vote are very important because as long as we are well prepared, the preliminary vote is likely to stick in the overwhelming majority of cases. But it is not final and we retain the right to think further about problems and change our minds.

“What you get in oral argument is a well-prepared court that knows the record, the legal issues, and explores them with counsel usually pretty actively. The judges usually come in with a well thought out position, but not a final one. Minds and ears still have to be open. If that preparation is of the high quality that we expect of each other, then it will be relatively unusual for positions to change dramatically.”

What about oral argument, Judge Hamilton, how important is that?

“A well-prepared judge will sometimes be pretty confident in what the results should be, but may also conclude that there are still some things he or she needs to know. Or, there are some lines of reasoning I want to test out with counsel and with my colleagues. There may be several paths for reaching the same result, and we may explore which one seems to have the most solid foundation, or is more persuasive.

“A major trend in civil litigation is the dramatic use of first summary judgment and then more recently, motions to dismiss, to resolve complex and difficult problems. I don’t think that’s an entirely healthy development. The flip side of it is, in essence, the continued decline of the federal civil trial and the decline in trial experience among lawyers and even judges. I think we need to push back against the tendency in our profession to assume that cases can always just be resolved on the papers.” – Judge David Hamilton, U.S. Court of Appeals for the Seventh Circuit

“Then there are cases where the applicable law and facts are simply quite complicated and we can use oral argument to try to make sure that everybody is working from the same page of facts and issues.”

Do you enjoy writing opinions, Judge Sykes? How many opinions do you write in a given year?

“The writing process is one of the most rewarding parts of the job. I enjoy taking the complex subject matter of our cases and making it understandable for both the bench and the bar, and the general public.

“The number of opinions I’m responsible for varies with the volume of cases each term. It may be that in the course of a given term I will write 40 to 45 authored opinions. It may be as many as 50 or 60. And we issue a whole lot of unsigned opinions, so every term I’ll be assigned to write many unpublished dispositions. But our unpublished orders are still fully reasoned decisions. We don’t issue summary dispositions.”

Judge Sykes, I understand you used to be a reporter for the Milwaukee Journal? Can you tell me about that?

“I earned an undergraduate degree in journalism from Northwestern University and worked for a year at the Milwaukee Journal. I really enjoyed my time as a newspaper reporter, but during the course of my undergraduate work, I entertained the idea of going to law school.

“I wanted to try journalism first to see how I liked it. Ultimately, I put the law-school plans on the front burner and ended up going to law school sooner than I had expected to. Frankly, the journalism skills have been really helpful to me in the work that I do now. It’s all about distilling a great deal of information and putting it into understandable prose for the general public. So I draw on that training all the time.”

You must read the news, Judge Sykes. What do you think about the media coverage of the courts?

“Yes, I’m kind of a news junkie. News coverage of the courts has really changed, just as the media in general has changed in the digital age. There’s much less coverage of the courts, I think. It has always been difficult to cover court news because it can be very technical and hard to understand for lay reporters. Criminal-law news is fairly intuitive for reporters, but some of the more complex areas of the law are hard to fit into bite-sized chunks for a news story. Just as every other aspect of our world has become increasingly complex, so has coverage of the courts. Interestingly, a number of popular law blogs tend to drive legal news. The general media picks up what is written on those blogs and relies on those sources to make judgments about what is newsworthy. It’s been very interesting to watch.”

Judge Sykes, I saw that you interviewed U.S. Supreme Court Justice Clarence Thomas at the Federalist Society’s 2013 National Lawyers Convention. What was that like?

“It was fascinating to have that kind of one-on-one conversation with him in front of such a large group and have the opportunity to draw him out about aspects of his remarkable biography, his remarkable career, and also his view on the current state of the law and our nation’s history. It was a very rewarding experience. He really is a gregarious and down-to-earth man. Of course, the public doesn’t know that side of him.”

Judge Hamilton, are there particular cases you enjoy hearing over others?

“The great thing about the job is that we are generalists. I have no particular favorites. We take the work as it comes. One area that has been entirely new to me is the immigration law cases. Since legislative reforms in the mid-1990s took almost all jurisdiction away from the district courts. That’s one area where I’ve had a lot to learn.”

Judge Sykes, how do you prepare? Do you have a particular style of judging?

“We all have different ways of preparing for oral argument. I think the way that I prepare is fairly traditional. I almost always have my law clerks prepare a bench memo for the cases that I am assigned to hear orally argued. They work independently and give me the benefit of their recommendation about how the case ought to be decided.

“Of course, I read the briefs and the lower-court opinion. I look at the relevant record items that I’ll need to be familiar with in order to decide the case. And then I will take into account my law clerk’s view of the merits before going into oral argument.

“In terms of decision-making style, collegial decision-making is just what it sounds like. It’s a collaborative discussion around the conference table about the legal issues that are presented in the case and how they ought to be decided. As most appellate judges will tell you, we all come into oral argument with a provisional view on the case because the briefing does most of the work.”

Judge Hamilton, are you seeing any particular trends in the federal appeals court?

“I’d offer several different trends. One is a great increase in cases with some international dimension as global trade, global travel, and patterns of immigration have expanded over the decades during which I’ve been practicing.

“Second is technology. The courts deal with the controversies of the economies and technologies of their time. Go back to the late 19^th century, and you’ll see lots of litigation over railroads and telegraphs. Go to the late 20^th and early 21^st century, and we are litigating fiber optic wireless networks and all the vast changes in information technology and the ways in which markets work or don’t work, in the way that federal governments regulate or don’t regulate – those kind of activities.

“A third major trend in civil litigation is the dramatic use of first summary judgment and then more recently, motions to dismiss, to resolve complex and difficult problems. I don’t think that’s an entirely healthy development. The flip side of it is, in essence, the continued decline of the federal civil trial and the decline in trial experience among lawyers and even judges. I think we need to push back against the tendency in our profession to assume that cases can always just be resolved on the papers.”

What’s a typical day at the appeals court, Judge Sykes?

“We hear six cases on a typical day of oral argument. We have a special category that we call our ‘short argument’ day—two days each month when a panel hears nine cases with only 10 minutes allotted per side. But on a more typical day, we will hear six cases.

Judge Sykes, what do you do for fun?

“The job is very demanding, so there’s not a whole lot of free time. I take home a lot of work. As the lawyers who work out in my gym will tell you, I’m always there with my briefs and copies of the caselaw preparing for oral argument. I have mastered the art of working out on the elliptical machine and reading briefs at the same time.

“Most of my time off the bench is involved with my family. I enjoy seeing friends and family members and try to have a normal personal life. I also accept invitations from law schools to judge moot-court competitions, give speeches, attend conferences, and so forth. I enjoy teaching.”

Judge Hamilton, do you have advice for lawyers on what they could do differently? Do you have a pet peeve?

“I would just say, refusing to engage with the factual and legal strengths of their opponents’ case and trying to pretend that they aren’t there, or trying to pretend the weaknesses in their own case aren’t there. Briefing and oral argument are far more productive and professional if everybody recognizes the relative strengths and weaknesses and then tries to explore those, rather than to simply wish them away.”

How about you, Judge Sykes?

“The most central piece of advice that I could give appellate lawyers is the need for focus in their arguments. An appeal is not an opportunity to throw everything against the wall and see what sticks. When crafting appellate arguments, it’s best to really focus on the issues that are the strongest in the case and frame them in a way that is succinct. We have a lot of reading to do in this job, so the quicker a lawyer can get to the point the better.”