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Bar News - March 18, 2011

A Day in the Life of Justice Carolann Conboy: Behind the Scenes at the NH Supreme Court


Justice Conboy with case files. Tall stack in front constitutes one case.
New Hampshire Supreme Court Associate Justice Carol Ann Conboy, after 17 years on the superior court bench, was appointed to the NH Supreme Court in 2009. Bar News asked her recently to provide a behind-the-scenes look at life as a Supreme Court Justice. She began with a brief overview of how the Supreme Court works.

"The cases fall into one of two categories – mandatory appeals or discretionary appeals," she said. "Mandatory appeals, which comprise approximately 65-70 percent of the cases, are immediately accepted; appeals on criminal convictions, final divorce decrees, and most final lower court decisions fall into this category." The remaining – the discretionary appeals – are reviewed by the five justices, who determine whether they will be accepted. Cases in this category include appeals from final decisions in landlord/tenant cases and final decisions of administrative agencies.

Conboy emphasized, "even if only one justice concludes that a discretionary appeal should be accepted, the case is accepted." Once a case is accepted and briefs are filed, a determination is made as to whether the case will be decided on the briefs and record, or assigned for argument before the full court or given to a 3JX (three judge expedited) panel.

Because of her administrative duties, recently-appointed Chief Justice Linda Dalianis does not participate in the 3JX panels; the other four justices share that responsibility. The 3JX cases are those that present no new issue of law," said Conboy. "The question in those cases is whether existing law was applied correctly by the lower court. However, there are times when, upon review, the 3JX panel concludes that the case should be decided by the full court, rather than by the panel."

Long Days and Nights

Prior to oral argument, all the justices review the briefs in all of the cases. Preparation for oral arguments involves a tremendous amount of reading, often done at night and on the weekends. One case can include hundreds of pages, and the stacks of case files can be daunting. (See picture.)

Each case is assigned to one of the justices who researches and drafts the opinion of the Court. These assignments result from a random draw. Each case number is placed on a small card, and all the case cards for a particular court session are placed in a silver pitcher – the "Peaslee pitcher." The justices draw from the pitcher in turn, and then learn the names of the cases they have drawn.

The members of the Supreme Court have drawn their case assignments from this pitcher for over 50 years. It was given to Justice Robert James Peaslee, who served as chief justice from 1924-1934, as a wedding gift. In the 1950s, his widow donated the pitcher to the Supreme Court.

Conboy noted that some lawyers erroneously assume that case assignments are based on the background and expertise of the justices. "I can assure you that the assignments are truly random," she said.

In the Courtroom

The Court generally hears full court arguments three days a month and 3JX arguments one day a month. On days when the full court hears arguments, eight cases are scheduled – four in the morning and four in the afternoon. Each case is allotted 30 minutes, with each side entitled to 15 minutes. A recess is taken after each set of arguments. During this recess, the justices discuss each case for the first time and take a "straw vote" on their preliminary view as to how the case should be decided. Thus, the justice assigned to write the Court’s opinion leaves the conference with a sense of how the justices, as a group, believe the case should be decided.

Much effort goes into the drafting of opinions. With the help of his or her law clerks, the authoring justice reviews the entire record before the Court, researches and analyzes the relevant law, and begins drafting. During this research and drafting phase, the authoring justice may conclude that the case should be decided differently from the straw vote. "If that happens," Conboy said, "the authoring justice will advise the other justices and solicit further input from them. It’s a fluid process based on careful research. We are all acutely aware of the significance of our decisions and work hard to ‘get it right.’"

Once a draft opinion is prepared, it is circulated among the other justices, who frequently suggest changes and additions. All concurring justices must be satisfied with an opinion before it is released. If one or two of the justices disagree with what will become the majority opinion, a dissenting opinion is prepared. Once opinions are finalized, they are published as "slip opinions," and posted on the Court’s website, available to the public.

Conboy noted that, increasingly, appeals are filed by self-represented litigants. "These cases can be very challenging, but all parties, including those representing themselves, deserve the Court’s careful attention." She advises opposing lawyers to address the arguments of self-represented parties just as thoroughly as they would those of parties represented by counsel. "The arguments of pro se litigants should not be discounted because an attorney did not make them."

Until just recently when Justice Robert J Lynn (formerly Chief Justice of the Superior Court) became the fifth associate justice, Conboy was the "new kid on the block." Now she hands that position over to Judge Lynn. The junior justice is responsible for such matters as recording the Court’s straw votes and issuing single justice orders on procedural issues.

When asked if she missed serving on the Superior Court, Conboy admitted, "Some days I do. I especially enjoyed the fast pace of trial work, and the daily interaction with attorneys and jurors." She quickly went on to say, "But the challenge of this position is more gratifying than I could have imagined. I consider it a privilege to be doing this work."

(See related article: Justice Conboy’s advice to lawyers who appear before the Supreme Court.)

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