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Bar News - January 17, 2003 Behind the Scenes at the NH Supreme Court - Part 2 By: Dan Wise Forming an Opinion THE LATE WILLIAM GRIMES, who served on the NH Supreme Court for 15 years after nearly 20 years as a trial judge, was famous for saying that he hesitated before agreeing to join the five-member appellate court because he thought it was akin to becoming "one-fifth of a judge." Justice Joseph P. Nadeau, also a veteran trial judge before he was appointed to the NH Supreme Court three years ago, recalled Grimes' quote and said he disagreed. "I feel that I have remained 100 percent a judge, and that the court is instead 500 percent of a court." The five justices, interviewed for a two-part Bar News article to provide insight into how the court does its work, acknowledge that there is a balancing act appellate judges must maintain. On the one hand, they have a commitment to make judgments based on their individual visions of the law. On the other, they see the need to collaborate with their fellow justices on making clear statements regarding common law. "The court at this point is very collegial," said Chief Justice David A. Brock, the senior member of the court with more than 23 years as a justice, the last 16 as chief justice. "There is a high level of mutual trust and confidence as we work together to decide cases as professionally and as quickly as we can. " And the court has followed through on that goal. In 2002, the court issued 179 formal opinions, as well as 97 non-precedential 3JX orders. Counting the cases screened or disposed of summarily, the court handled 938 cases, continuing to stay ahead of the number of incoming cases which increased last year to 813 cases filed, compared to 766 in 2001. Although fewer formal opinions were written in 2002 (179 compared to 229 in 2001), the court was "essentially current" on its docket. How are these five individuals able to handle so many matters, and how do they form their opinions? Without breaching the confidentiality of their conferencing and deliberation process, the justices talked generally about the process in a series of interviews with Bar News, and three of the justices will participate in an NHBA CLE Program, Supreme Court Forum, on Friday, Jan. 24, at the 2003 NHBA Mid Year Membership Meeting. (See pages 16-17 for details. Unlike the US Supreme Court, where ideological blocs are distinct and many opinions result from split votes, studded with partial dissents and partial concurrences, the NH Supreme Court is marked by its unity. Only occasionally are NH Supreme Court opinions issued with dissents, court officials acknowledge. "No one on this court has a political or philosophical agenda," said Justice Nadeau. "No one here is trying to move the law a certain way." "I have been here seven years, and much of the reason that I have enjoyed my tenure on the court has been due to the chief justice," said Associate Justice John T. Broderick, Jr. "He doesn't go out and lobby people. He allows enormously open discussion of the cases and manages with a light touch." The court's newest member, former Chief Appellate Defender James E. Duggan, who, in representing indigent criminal defendants was often on the losing end of appeals, has not broken with the collegial tradition. "I don't think of myself as an individual judge, but I think of working here as part of a court," he said. "Maintaining collegiality is very important," Broderick said. "This is the only law firm in the state where you don't get to pick your partners. It is as if there are five separate law firms, yet they are integrated," he added. "Everyone keeps his own counsel, but we work together with courtesy, affection and respect. The goal in all our discussions is issuing a product for the court, yet following your own commission." In separate interviews, the justices shared insights into the process they undergo in rendering their opinions. (The justices' view of the case-screening process was discussed in detail in part 1 of this article, published in the Jan. 3, 2003 Bar News.) Preparing for Oral Argument Once a case is accepted for full consideration (as opposed to being accepted for expedited decision under the 3JX process), the case is scheduled for oral argument. Under a recent change in procedure, the court now randomly assigns the opinion-writing to one of the justices before oral argument. Only in those cases in which the justice chosen to write the opinion is in the minority (a rare instance given the high percentage of unanimous opinions) will a change be necessary once oral argument is held. Justice Linda S. Dalianis, who acknowledges that she is "working harder than I have ever worked in my life" as a Supreme Court justice, said the only way to tackle the enormous amount of reading that confronts her every month is to "find a place to hide" in order to read. Like the other justices, her time at the Supreme Court building is mostly devoted to meetings, conferences and scheduled argument sessions. She does much of her reading and opinion- writing at home on weekends or at an office she uses in the Hillsborough County Superior Courthouse in Nashua. The justices say they apply the same level of intensity to reading briefs in preparation for oral argument as to screening cases, but the purposes are different. " "In case screening, we are reading the appellant's best arguments uncontradicted by the opposing party. We are asking ourselves: "Is there an issue here that should be addressed? What would be the reason for taking this case?'" Dalianis explained. "Once a case has been accepted, however, we see both sides of the controversy and we are reading to discern the validity of the arguments." As anyone who has witnessed an oral argument before the NH Supreme Court is aware, the justices typically question both sides closely - probing the advocates for weaknesses in their cases and testing the limits or the extensions of their propositions. "I don't read the briefs to make up my mind about the case," said Duggan. "I don't do in-depth research at that stage. While I may be leaning one way, I try not to be committed to a position before oral argument." Duggan adds: "Now that I am on the other side of the bench, I realize the oral argument is even more important than I thought it was. I didn't realize how focused the court becomes on that case." Duggan said the short conference the justices hold after hearing oral argument is when a pivotal straw vote is taken, establishing, though not cementing, the justices' positions on the case. Once a straw vote of the justices is taken, the case goes to the justice pre-selected to write the opinion. In the next few months, the case opinion is in drafting stage, involving the author's law clerks and Deputy Clerk and Reporter of Opinions David Peck, before it returns to the justices' case conference agenda. Discussions of the opinions can be intense, but always are respectful, Broderick said. He said he enjoys hearing the views of other justices with varied backgrounds and approaches. "When I came onto the court, my predecessor, Batch [Justice William Batchelder] said knowledge is your most important asset," said Broderick, who was appointed in 1995. "I have discovered just how knowledgeable my colleagues are. The level of discussion of cases in the conference room is extraordinary." For Justices Dalianis and Nadeau, their role as appellate judges puts them in a position of closely reviewing - and sometimes reversing - the work of longtime colleagues on the Superior Court. Justice Dalianis, a member of the Superior Court for 20 years before her appointment in 2000, said that she is objective in analyzing the work product of her colleagues, and at the same time her trial court tenure provides her with additional insight. " To the extent that I have a pragmatic understanding of what happens in a trial court, I can bring that experience to bear," she said. "There are two of us [Justice Nadeau as well] with recent experience as trial judges, as well as a law professor [Justice Duggan], a former trial lawyer [Justice Broderick], and a judge [Chief Justice Brock] who has been an appellate judge for many years." Once a case is ready for review by all of the justices and appears on the agenda for the first time, it is discussed again with the aim of "clearing" or reporting the case out. Sometimes, an additional issue or question is raised that requires research and the reporting of the case is deferred. Brock said the court has instituted changes designed to ensure such cases aren't overlooked. "We start the case conference with the opinions previously distributed for comment," said Brock, using terminology that refers to such cases as "above the line" while opinions that have not been circulated be fore are "below the line." Brock said new cases can be subjected to a "page-by-page" critique and analysis by the justices. According to Brock, the procedural innovations adopted by the court in recent years - the 3JX process, skipping the fourth month of oral arguments to concentrate on opinion production and other steps- largely stemmed from retreats the justices periodically hold to consider new ways of doing things to improve the process and make sure nothing is overlooked or neglected. Brock is pleased with the progress the court has made as it strives to meet the simple goal of "working hard to develop opinions that will be easily understood by readers and hopefully stand as legal precedent for the future."
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