The three newest additions to the Minnesota Court of Appeals say the experience of sitting on an appellate bench is proving to be at least somewhat different than they expected.
“The biggest shock for me is the amount of time that we’re allotted to actually work on our cases,” said Minnesota Court of Appeals Judge Heidi S. Schellhas, who previously served as a Hennepin County District Court judge. “I’m still in the honeymoon phase; I’m still pinching myself because I am loving it so much.”
All three new judges, Schellhas, Francis J. Connolly and Matthew E. Johnson, were appointed to the appellate bench by Gov. Tim Pawlenty late last year and took their places on the court on Jan. 1. Like Schellhas, Connolly was elevated from the Hennepin County District Court bench, while Johnson was previously a shareholder with Halleland Lewis Nilan & Johnson. The trio recently shared their thoughts on their new jobs with appellate attorneys from all over the state.
The program — “First Impressions from the Appellate Bench” — was part of Minnesota CLE’s Appellate Practice Institute, held on March 18. Minneapolis attorney Bruce Jones moderated the event.
Some aspects of being on the appellate bench were unexpected, the judges say, including the workload and the unique way in which appellate judges work together.
Schellhas anticipated spending three days a week hearing oral arguments, but discovered that she is actually only in court one full day a week. She said that while the workload at the Court of Appeals is “very heavy,” she is doing much of her work during the day now rather than at night and on weekends. “I’m so positively amazed at the discipline and efficiency with which the Court of Appeals addresses the cases and workload,” she said.
Connolly said that a student recently asked him what it was like being an appellate judge and he responded that “being on the Court of Appeals is like doing homework all the time — forever.”
Agreeing with Schellhas as to the heavy workload, Connolly said that at the trial court level he felt that at times he was able to “catch up” with his caseload. That’s not true on the appellate bench, he said, noting that each judge is expected to write 10 opinions each month. “It just never stops,” he quipped.
Nonetheless, Connolly is enjoying his new job. “I was on the District Court bench for nine years. I was ready for a change and it’s certainly exceeded all of my expectations,” he told the audience.
Johnson is particularly enjoying the collaborative way in which the appellate panels come to their decisions. “Judges work together to reach a common result,” he said.
The judge explained that he expected that some panel members would have definite opinions on a case and try hard to convince the other judges to go their way. Instead, it’s not unlike a law firm where lawyers sit down together as a team to work on cases, he said. “There is a heavy presumption that we will, together, find the right answer.”
The judges also shared their thoughts on how attorneys present their cases on appeal, both in briefing and in oral argument.
Schellhas said that as in District Court, the briefs vary considerably in quality. She noted that overall the material presented to the court is generally good quality, but she advised attorneys to be sure to stay within the word limits.
The judge added that oral arguments have also been good, although she’s been a little surprised by a few of them. She pointed to one instance in which an experienced appellate attorney seemed to have saved his most important argument for last, but because of the panel’s barrage of questions, he never got to it.
To that end, Schellhas advised attendees to decide ahead of time the most important thing the panel needs to hear, get it out immediately and identify it as the most important issue. “Don’t try to save the best for last because you might never get there,” she warned.
Schellhas also said that when she’s on the bench, she is “the court” not “you” and that she bristles a bit when referred to as such. “To me, it’s too informal and it personalizes things when they ought not to be personalized,” she said.
Connolly pointed out that at the appellate-level attorneys have just a few minutes to convince the panel — within the limited standard of review applicable to the case — why it should reverse the District Court judge. He said that when he’s preparing for oral argument the first thing he looks for is the District Court opinion, and that if it looks good, “you’ve got an uphill battle.”
Start with the District Court opinion and explain why the judge got it wrong, Connolly stressed. “If you can’t do that, you’re going to lose — at least on a panel that I’m going to sit on,” he said.
Johnson said that he’s been surprised at how short many of the appellate briefs are, but stressed, “That’s OK.” With respect to oral arguments, he pointed out that 15 minutes is not a long time to try to convince the panel of the correctness of a position, which is why he appreciates it when lawyers answer questions briefly and directly. “If I have to follow up with another question, it wastes time,” he said.
Johnson’s advice, therefore, is to answer questions clearly, directly and succinctly. “If some judges on the panel have questions, it’s in your interest to help them get answers,” he said.