An Unexpected Turn

by | Oct 4, 2023

For those of you who read this blog, you may recall the post I made just a couple months ago about expecting the unexpected: LINK In that post, I discussed how one “wildcard” factor in any appeal is the judges. While we often think of only the two opposing parties as the “active” participants in a trial or appeal, judges are not always the passive arbiters of justice that we might imagine. They can “jump in” and engage the case much more actively than one might have predicted.

In trial work, this might present itself when the judge interjects his or her own questions to a witness. Done carefully and sparingly, the judge’s questions may simply help clarify what the witness was already trying to say. On the other hand, I have seen judges apparently abandoning their neutral position and instead pressing a witness into a corner. In the extreme this can lead anyone watching to doubt the impartiality of the judge, and thus the fairness of the entire proceeding.

Judges can also take active roles in appeals which can lead an outside observer to question their impartiality. In a recent Court of Appeals case I was reviewing, the Court completely skipped over whether one of the issues was right or wrong. Instead, it held that the issue had a procedural problem which enabled the Court to dismiss it without considering the merits. The Court’s approach came as a surprise to both sides, because neither side had mentioned even the possibility of the procedural problem — not even the side which ultimately benefitted from it! What was a windfall for that party seemed to be an unjust slap in the face to the other. After all, judges are supposed to answer only the legal questions which are presented to them. The moral of the story here is that, while we want all our judges to be impartial, we must accept that they are only human and subject to some internal biases which may push them toward one result or another. Rather than ignoring this fact, a good appellate lawyer will try to identify these biases up front and then turn them to the advantage of his side.

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