The Skillsets Involved in Arguing Supreme Court Cases

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Transcript

State Bar of Michigan: On Balance Podcast

The Skillsets Involved in Arguing Supreme Court Cases

01/16/2018

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Intro: Welcome to State Bar of Michigan’s On Balance Podcast, where we talk about practice management and lawyer wellness for a thriving law practice with your hosts JoAnn Hathaway and Tish Vincent, here on Legal Talk Network.

Take it away ladies.

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JoAnn Hathaway: Hello and welcome to another edition of the State Bar of Michigan: On Balance Podcast on Legal Talk Network. This is JoAnn Hathaway, Practice Management Advisor for the Practice Management Resource Center at the State Bar of Michigan.

Tish Vincent: And this is Tish Vincent, the Program Administrator for the Lawyers & Judges Assistance Program at the State Bar of Michigan. We are recording today’s show at the NEXT Conference in Detroit, Michigan.

JoAnn Hathaway: Joining us now we have Justice Kurtis Wilder of the Supreme Court of Michigan. Welcome to the show.

Justice Kurtis Wilder: Thank you very much. I am glad to be here.

Tish Vincent: Before we get started, please tell us a little bit about yourself.

Justice Kurtis Wilder: Well, I am the newest justice on the Michigan Supreme Court. I have been there since May 9. I am the 112th Justice, the fifth African-American justice in the Supreme Court’s history. Before that I was at the Michigan Court of Appeals for 18 years and at the Washtenaw County Circuit Court for seven years.

Tish Vincent: Wow.

Justice Kurtis Wilder: And so I have been around 25 years and really glad to be here on the Supreme Court.

JoAnn Hathaway: Thank you for joining us today, Justice Wilder. We are here to discuss arguing cases in the Supreme Court.

Justice Kurtis Wilder: It’s a great topic. One of the fascinating things about arguing cases in the Supreme Court is you have to consider that it really starts at the trial court level. Whenever you are presenting your case at the trial court, you have to think about, is this a really big issue? And if it is, what do I need to do to preserve the record, so that ultimately I can get this case to the Michigan Supreme Court?

It’s a fascinating concept because there are two different specialties, trying a case and arguing a case on appeal, are two different skillsets. So you want to think about that when you are the trial lawyer who has that case, discussing it with an appellate lawyer, what are the pitfalls and my trying this case that might arise before I present this case to the Circuit Court.

How do I make sure that any of these pitfalls are things that I can overcome so that on balance if I don’t prevail or even if I do prevail on the other side appeals, I am in the best position to ultimately argue these issues at the Supreme Court.

Tish Vincent: So an attorney shouldn’t think that they have the skillset to do appellate work because they have the skillset to do good trial work.

Justice Kurtis Wilder: That’s very true. There are two different skills, and when you are trying a case at the lower court level, dealing with the jury, or even if it’s a bench trial, the issues of persuasiveness, witness preparation, witness presentation, these are all very different skills from looking at a cold heart record and telling an Appellate Court what things in the record are most significant that the court ought to consider in deciding maybe a new area of law or clarifying an area of law.

You are not really concerned about that area of law when you are putting witnesses on the stand, you are concerned about proving facts. At the Appellate Court you are concerned about applying those facts to an area of law.

Tish Vincent: I am wondering what you think a trial attorney could do to improve their understanding of that process or find appellate attorneys that might help them understand what they should be preserving?

Justice Kurtis Wilder: When I was in private practice we had a regular opportunity to meet with the lawyers in our firm that regularly argued appeals, and we would talk to them about the various pitfalls that would come up. I was an employment discrimination attorney. So, we would talk about the different areas of law. One of the emerging issues was after-acquired evidence; that ultimately was decided by the US Supreme Court. After-acquired evidence being, what happens if an employer hires somebody and then discovers after the fact that the employee failed to disclose important information that might have altered the hiring decision.

And in order to preserve that issue you had to understand what was happening in the Appellate Courts, and if you were not conscious of that as a trial lawyer, you would never bring those issues up and therefore you would lose the issue on appeal. So that’s the kind of example that I am talking about.

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If you are not focused on appeals as a trial lawyer, you may miss some things that are emerging in the Appellate Courts and then the Supreme Courts around the country or in your own State, and therefore not ask the right questions to get into the records so that you can actually make an issue of it on appeal.

Tish Vincent: It sounds like that’s a lot of knowledge for one individual, some people might be able to do both skillsets, but this is a need for networking and for a community of attorneys where you can learn from your colleagues.

Justice Kurtis Wilder: I think that’s true. The issue of specialization is critically important to understand for lawyers. There’s no way you can know everything about every area of law and we kind of joke at the Supreme Court; well, we know everything about every area of law.

Tish Vincent: Yeah.

Justice Kurtis Wilder: But, the reality is, we have six other great colleagues. We each have four law clerks on our staff, and we have a great commissioner staff, and the commissioners have different areas of expertise. So we are starting with reports from people who have expertise in a particular area that help guide us to the right direction, and then we can go from there.

If you are a trial lawyer out there on your own or even if you are in a firm, if you are not talking to the appellate lawyers who understand that area very well, I think you are potentially shortcutting your client because you are just not preparing yourself as well and you are not preparing your record as well as you might be able to otherwise.

Tish Vincent: Yes, excellent points.

JoAnn Hathaway: Are you aware of any educational opportunities that there are for people out there to prepare them for arguing before the Supreme Court other than you had mentioned other attorneys within the firm, potentially the Appellate Department in a firm, but if we are talking about a solo or small firm, obviously, or sometimes they may have difficulty in having someone to bounce something off from and to get that guidance from, do you have any suggestions?

Justice Kurtis Wilder: The first suggestion I would make is that you go to the Michigan Supreme Court YouTube Channel. There are arguments on a monthly basis from October through May and each of those oral arguments is ultimately posted on the YouTube Channel, and you can look at those arguments and see immediately what works and what doesn’t work with the justices.

How a particular skill the appellate attorney will handle a question from a justice and how those attorneys who really don’t understand what the justice is driving at and struggle with those questions? So that’s one really good way of seeing what works and what doesn’t and what kind of preparation you should make.

JoAnn Hathaway: Yes, social media outlet, we were talking about that earlier today and how — what a great job the Michigan Supreme Court does with social media. So that’s wonderful, you are getting it firsthand there.

Justice Kurtis Wilder: Yes, we are very proud. In fact, the justices as well, sometimes look at the YouTube arguments theirselves —

JoAnn Hathaway: Interesting.

Justice Kurtis Wilder: — just to get a — you are reading it in a transcript but to actually look at how the lawyer handled the question and what the justices especially said when they were presenting the question. I think those are useful and we use that ourselves.

Tish Vincent: That’s very interesting. Another thing we were talking about a little earlier was the demeanor and decorum of attorneys that are arguing a case before the Supreme Court. I thought maybe our audience would be interested in hearing your thoughts on that issue.

Justice Kurtis Wilder: It’s very interesting as a trial lawyer to read your jury. You get a sense of which way the jury is trending, sometimes the emotion of the oral argument, sometimes the skillful cross-examination of a witness impacts a jury, and a skilled lawyer will see all of that and make a point to emphasize that in the closing arguments. That’s not really something that works at the Supreme Court.

We are not heartless, but we understand that our job is really applying facts to the law, and understanding the fabric of the law that is impacted by the particular case before us.

So, we do have to put aside some of that emotion to decide the particular case before us, and it’s not really helpful for a lawyer to argue with an impassioned tone about how important it is to decide the case in their favor. In fact, it seems a little manipulative, rather let’s have a conversation. This is seven lawyers who are well-trained having discussion at the time with another lawyer who’s well-trained and who’s trying to help us understand what the key facts in the case are and how the law should be developed through our ruling so that the law is very well-settled and importantly causes there to be a just result. And, that’s what we’re looking for. It’s a conversation, not a yelling match.

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Tish Vincent: Yeah, so some of the theatrics that might be of a benefit to an attorney in the courtroom are not going to be at the Supreme Court?

Justice Kurtis Wilder: They really aren’t.

Tish Vincent: No.

Justice Kurtis Wilder: I’ve seen lawyers who have tried that and it’s not to say that the court won’t rule in your favor, if we believe the facts and the law require it, but it’s just not helpful to persuade the judges; in fact, it’s a little disarming, it’s a little negative.

Tish Vincent: It sounds like if there is a lot of theatrics, then you have to use some energy to look past it.

Justice Kurtis Wilder: One of my favorite lines to an attorney who’s doing that is to say that counsel you already had your opportunity at the jury. This is the Appellate Court now, and that makes the point that we really don’t need the theatrics, and it’s fine that you’re passionate about your case.

You would want to see the lawyer be passionate about the case, but there’s a right way and a wrong way to demonstrate that passion. I would rather have the passion in a very well-written brief, in a very skillful oral argument, not theatrics.

Tish Vincent: Very good.

JoAnn Hathaway: Well, it looks like we’ve reached the end of our program. I want to thank our guest today, Justice Wilder.

Justice Kurtis Wilder: Thank you for giving me the opportunity to talk a little bit about the Michigan Supreme Court; it’s been a great honor.

JoAnn Hathaway: It’s our pleasure.

Tish Vincent: If our listeners have questions or wish to follow up with you, how can they find you?

Justice Kurtis Wilder: I think they should go to the Michigan Supreme Court’s Twitter feed or our Michigan Supreme Court Facebook page.

JoAnn Hathaway: Thank you.

Justice Kurtis Wilder: You’re welcome.

JoAnn Hathaway: This has been another edition of the State Bar of Michigan: On Balance Podcast. I’m JoAnn Hathaway.

Tish Vincent: And I’m Tish Vincent. Until next time, thank you for listening.

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