Recently the redoubtable Judge Saxophone came out in the NY Law Journal with a piece called Ten Ways to Improve the First Department. The problems it addresses are so recondite we didn’t know they existed, while the problems it doesn’t address. . . Well, it’s like when the City used to paste pictures of flowerpots on the boarded-up windows of crumbling buildings. Still, any First Department judge who suggests that the Court needs improving is like Gorbachev admitting that the Soviet Union was a trifle repressive. Can glasnost be far behind?
Naturally, we have our own suggestions for the Court:
1. Read the briefs. Deciding an appeal by only reading the bench memos is like deciding how a restaurant’s food tastes by only reading the menu. We know reading briefs – especially People’s briefs – can be a pain but hey, that’s the job.
2. Provide the bench memos to the parties before oral argument. That way we have some clue of what notions we’re arguing against. Especially when the anonymous gnome who wrote the bench memo has some theory of the case that neither of the parties has remotely argued.
3. It really gets things off on the wrong foot when the Presiding Justice opens the proceedings by moaning about having to stay until 5 o’clock if everybody argues their case. You know not everybody will show up for argument, and even if they did, what’s the big deal about staying until 5?
4. Instead, why not graciously welcome the attorneys – even when there are no school groups in the audience – and thank us for using the First Department.
5. Studies show that when hearing a lot of cases, judges do a better job if they get a coffee break. A 15-minute intermission could do wonders.
6. At present, the Court requires electronic filing and paper briefs, deftly combining the inconveniences of both. Take a tip from federal court and put up a state version of PACER. You can learn more about it from Ms. Gavel and Mr. Sound Block.
7. Judge Saxophone wants a constitutional amendment allowing the First Department to conduct en banc rehearings, i.e., have a do-over in front of all 18 judges. Ugh! Bad enough to have to go there once, nobody should have to go there twice. Hell, it’s only an intermediate court. If a judge thinks the decision was wrong, she can grant the loser leave to argue to the Court of Appeals, where at least some of the judges read briefs.
8. But don’t grant leave to the People. They’ve had their chance.
9. An appellate decision should be distinguishable from a prosecutor’s summation. No reason to insult our clients just because they’ve been convicted of a crime.
10. Read the briefs.