I was very fortunate to clerk for Judge Richard Posner, who recently announced his retirement after more than 35 years on the Seventh Circuit. The year I spent in his chambers was challenging and fun. But I think that I learned the most from him about how to be a good appellate lawyer in the years after my clerkship.
Apart from a year in Washington, I have worked in Chicago for my entire post-law school career. I worked as a Skadden fellow for the Sargent Shriver National Center on Poverty Law and as an associate at a small civil rights firm. I’ve been on the faculty at Chicago-Kent College of Law since 2003, I’ve advised and mooted lawyers around town as they prepare for Seventh Circuit briefing and arguments, and I recently spent two-and-a-half years serving as Illinois Solicitor General – the state’s chief appellate lawyer. So I’m familiar with the Seventh Circuit not only as an academic observer or someone noting the headline cases, but also as a practitioner.
Judge Posner is not the easiest judge to appear before. He can be grumpy and impatient. And as his recent interviews attest, he has become increasingly willing to challenge established orthodoxies about how courts function. He has been known to rely on internet research to investigate factual background he finds lacking in the parties’ presentations. He demands to know why the court should embrace particular propositions. “That’s what the cases say” is not an acceptable answer. In other words, he wants to know the story of the case – not a recitation of facts from the record – and he wants to know why the result a party seeks makes sense.
I’m not giving away any secrets here – Judge Posner has said all of this himself – but there is something about watching it play out in cases I’ve worked on that concentrates the mind. And while most judges don’t describe judging in the terms that he does, I don’t think you can go wrong as an appellate lawyer imagining that you are writing for and appearing in front of him. In other words, I don’t think you can go wrong if you ask yourself two questions about every appeal you work on: (1) “what is the story I want to tell?” and (2) “why does the result I want make sense?” Of course, that doesn’t mean you can ignore the law or that you can create the record you wish had been developed below, but it can have implications for how you prepare both your brief and your oral argument.
Here’s an example. When I was Illinois Solicitor General, we had a case involving press access to the floor of the state legislature. It was a First Amendment challenge to the legislature’s policies for giving (or denying) press passes. The district court dismissed the complaint due to legislative immunity, so there was no record to speak of. One of the first things I did before briefing the case was to go to the statehouse and see the physical setting for myself. I tried to make sure I understood how press access both inside and outside the legislative chambers worked. Almost none of that was in the record. But I kept it firmly in mind as I wrote the brief. (One benefit of understanding the background facts and context is that you won’t accidentally make a false assumption or make an argument that if accepted could cause problems for your client either in this case or in a later one.) And at oral argument (without Judge Posner on the panel), the judges asked me about that access. I told them it wasn’t in the record, waited a beat to see if they would stop me, and then answered the questions.
Both in the brief and at oral argument, I presented the case as being not about whether legislative immunity protected the particular decisions at issue, but about who has control over access to the legislative floor – courts or the legislature itself. That was an accurate description of the issue, but it was a description that forced a focus on the underlying reasons for legislative immunity, not just on whether the existing precedent required dismissal.
The Seventh Circuit affirmed the dismissal of the case on immunity grounds. I don’t have any reason to think that the outcome would have been different if I had not been imagining Judge Posner’s questions while I was working on the case. But if I had not been able to talk about press access in the statehouse, I suspect that it would have frustrated the judges. Even if most judges are unlikely to do the kind of extra-record research Judge Posner occasionally did, they do like to understand the context that the case fits into when that’s appropriate. And the opinion itself provided a clear explanation of the importance of legislative immunity. “It is hardly a stretch to characterize control of access to the legislative floor as a core legislative function,” the court said, noting that decisions about floor access implicate “voting, conferring, making speeches, and so on …[,] activities [that] are all integral to the legislative endeavor.” And in the absence of immunity, it would be “nearly impossible for a legislature to function, as it would potentially subject legislators and their aides to liability for every floor-access decision they make.”
Of course, as an advocate, you must be scrupulously honest and accurate. You can’t create a record you wish had been developed below. (Appellate lawyers always have 20/20 hindsight.) But by understanding and being prepared to talk about the factual context, you might even be able to head off a Judge Posner from doing his own research, over which you have no influence. And you can and should try to frame a legal issue so that the court understands its implications beyond your case. Even though he won’t be there anymore, it can’t hurt to imagine it will be Judge Posner behind the bench when your case is called.