How Opinions are Written and Circulated in the COA
May 28, 2014 § 7 Comments
We recently had the benefit of a series of posts in which Presiding Judge Kenny Griffis explained the COA’s deliberation process from assignment of an appeal by the MSSc through the granting of cert.
Now Judge Griffis continues with his description of the process by which opinions are written and circulated.
How Opinions are Written and Circulated
“A judge rarely performs his function adequately unless the case before him is adequately presented.” — Louis D. Brandeis, “The Living Law”
A. Circulation of cases from other panels
Each week, I receive opinions from other panels; we call this Full Court circulation. Each opinion in Full Court circulation has been through a panel conference and was approved by at least two Judges. My decision is whether I can rely on the panel’s work and join the opinion?
I start with the opinion. I read it carefully. If I have any question about the opinion, I get the briefs, the transcript, or the record to give the case my full consideration. Often, I read the cases cited in the opinion to determine whether I can agree with the analysis. When I am satisfied, I can vote to concur with the opinion.
If I disagree with the opinion or if I am unsure, I can talk to the writing Judge, other panel Judges or any of my colleagues to see if they share my concerns. I can also conduct my own research and review. Often, I may ask the writing Judge to consider a modification to the opinion to address my concern. If a modification is not sufficient, I may write a separate opinion and provide it to the writing Judge.
If I decide to write a separate opinion, I must write an opinion that accurately discusses my concerns with the Court’s opinion. My separate opinion is circulated again with the panel opinion. If the majority of the Court agrees with my separate opinion, I have to write a new majority opinion to recirculate once again.
B. Circulation of cases from my panels
Each week, I also receive opinions in panel circulation. These opinions were written by the other Judges on my panels.
In these cases, I have already read the briefs and the record excerpts. I often reread the briefs and my notes from my preparation for the panel conference. I will use the record excerpts to find the materials that I need from the record or ask for the transcript or the record to review before I sign off on the opinion. I will read the cases that I think are relevant and necessary for me to join the panel opinion or decide to write a separate opinion.
At the panel conference, I heard the assigned Judge’s presentation and recommendation. I asked questions and voted on the recommendation. When the panel opinion is circulated, I have to check the opinion to make sure that the assigned Judge wrote the opinion based on the panel’s vote and consistent with my concerns. If I have questions about the record, I must conduct an extensive review of the record.
If I have questions or concerns about the opinion, I communicate with the writing Judge to improve the opinion. For example, I may disagree with the factual presentation and ask that other facts be added. I may also ask that the opinion include another case or citation to different authority. If I concur with the result reached in the panel opinion, I want to help the writing Judge issue a correct, adequate, and thorough opinion for the Full Court’s consideration.
If I disagree with the opinion, I can write a separate opinion and provide it to the writing Judge. My separate opinion will be circulated along with the revised panel majority opinion (the opinion-writer may revise the opinion to address my separate opinion). If the majority of the panel changes, the case has flipped. I become the opinion-writer, and I have to write the majority opinion to circulate.
My separate opinion may not carry the day at panel but, upon Full Court circulation, the case may flip after all the Judges have voted. There remains the chance that my position may prevail, and I may have to write the majority opinion.
C. Cases initially assigned to me to write
As soon as a case is assigned to me as the writing Judge, my clerks start to work on the opinion. I assign one clerk to each case. I ask the clerk to read the briefs, review the record, and read the parts of the transcript that are relevant to this case. I expect my clerk to prepare a draft opinion.
I normally start to review a case with all of the briefs, the record excerpts and a draft opinion in front of me. I almost always start with the appellant’s brief. I try to read each brief all the way through at one sitting. If the trial judge has written an opinion, I will interrupt the reading of the briefs to read the trial judge’s opinion as soon as I can.
I then read and edit my clerk’s draft opinion. I want to make sure the draft opinion has an accurate statement of facts and procedural history. I may make some notes about changes that need to be made or facts that we may need to examine in the record. I want to make sure that the opinion has accurately stated the positions of the parties. I will come back later and edit the legal analysis.
When I am assigned as the writing Judge, I focus my review from the beginning on the opinion. I read the briefs to decide the case and produce an opinion. I immediately begin to consider which brief will help me, as a reference guide, to write the opinion.
I prefer to have a final opinion ready to present at the panel conference. I plan my panel presentation based on my draft opinion. If other Judges are concerned about an issue or topic, I can tell them how I plan to write it in my opinion. If another Judge is concerned about the presentation of a fact or case authority in the opinion, I note their concern and revise the opinion to address the concern. If there are no objections or concerns, my opinion will be ready to circulate as soon as possible.
III. Conclusion
Almost one hundred years ago, the Mississippi Supreme Court complained about the fact that the “burden of case law has become unbearable to both bench and bar.” Yazoo & M.V.R. Co. v. James, 108 Miss. 852, 67 So. 484 (1915). Mississippi case law is burdensome. I try to write short, clear and crisp opinions. There are many cases that require a longer, more detailed opinion.
I hope that this material will help you understand the Mississippi Court of Appeals. Thank you for the opportunity to serve on the Court of Appeals.
The Better Chancery Practice Blog 
Thanks for this post, Judge(s).
Maybe I missed it, but I’d like to hear about how cases are designated for oral argument and what the Court wants from the attorneys during the argument. IE- do they want us to dispense with the facts and go straight to the legal argument, or what?
How are cases designated for oral argument?
MRAP 34(a) provides that “oral argument will be allowed unless the court, or the panel to which the case is assigned, unanimously agrees that” there is really no reason for it.
I can only speak for myself, but if another member of my panel wants oral argument in a case, that is fine with me. However, if I want argument and the other judges don’t, I need to ask questions and try to make it a productive and useful argument. The lawyers will not know who or how many judges wanted oral argument.
When I decide whether to grant oral argument, I consider two things. First, will oral argument help me to decide this case? if the case is complex or has some factual twists or turns, I tend to want oral argument. Also, if the parties can’t agree on the facts or the relevant law, I think oral argument may be helpful.
Second, I will grant oral argument if both parties ask for it, MRAP 34(b) requires the parties to state whether oral argument is requested. As a lawyer, I would not ask for oral argument if (a) I really don’t want it, or (b) I don’t have anything to argue. Please don’t just ask for oral argument in every case.
What does the Court want from the attorneys in oral argument?
It depends on the case.
However, you, the lawyer, should answer this when he/she decides to ask for oral argument. As soon as you type, “Oral Argument Requested,” you should know what you will argue.
If you didn’t ask for oral argument, I would appreciate it if you would explain the case. You can start with a short introduction on what the case is about. You can clearly explain what part of the trial court decision that is appealed. Then, you should clearly state why it should be reversed or affirmed. I usually write down the name or cite of each case you mention in the first 10 minutes of the argument. I assume that you think those cases are the most important. After the argument, I go read those cases.
Judge Charles Clark once gave this advice, “Immediately get to the critical issue that is favorable to your case. Do not forget to address the opponent’s case.”
You should be able to expect that the judges have read the briefs before the argument. Also, you should expect that other judges are watching the oral argument through the internet feed. They may not know anything about the case, and this may be their first impression of your case. For this reason alone, I would have a clear introduction or summary that clearly states my position.
There is no rule that you have to use all 30 minutes of your time.
I hope this is helpful.
Interesting, but I would have liked to hear about “concurs/dissents/both [in part] without separate written opinion.”
Perhaps Judge Griffis will grace us with an exposition on that.
Each judge has the discretion to vote how he/she wants to vote on each case. I prefer not to do this but it does happen. Other judges may have different views.
When I vote to concur in part or result, dissent, or some variation without opinion, it is usually based on a time issue. The writing judge and the panel has a great deal of discretion about when to circulate an opinion. if the writing judge holds on to an opinion too long, other judges experience a time crunch. If I get an opinion that I don’t agree with, I try my best to write a separate opinion. However, if I don’t have time to write a separate opinion, I will vote like this. If several judges vote this way, there may me reason to expect the court to consider the opinion again on rehearing.
At some point, almost all judges have cases they find difficult to write and it takes longer than expected. Just like lawyers, there are times that judges feel like Lucy on the assembly line with chocolates coming down the line a little too fast.
The most common reason this happens is the Court’s desire to render a decision within the 270 day rule. We make every effort to comply with this rule.
Thanks, Judge Griffis!