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.
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.