Know Who the Judges Are Before You Present Your Argument
May 20, 2019
Writing on the Appellate Advocacy Blog, Lance Caughfield discusses the importance of understanding who the panel of judges are before presenting an argument, so the argument can be tailored to their mind set. He stresses that judges are more than just rational decision-making cogs, they are people and people are complicated. Common sense indicates that politics, attitudes toward policy and even conscious and unconscious prejudices have a lot do with judicial decision-making. Some courts have acknowledged this by refusing to disclose the makeup of a panel until the day before arguments are scheduled, but most circuit courts, and most state courts of appeal, disclose the panels early as the notice of setting. Others stagger the notice until closer to the actual argument. According to Caughfield, the difference seems to be based on a differing perceptions of the role of individual judges. “If judges are truly and perfectly impartial, fair, independent, and professional, then there is no need to know anything about them as individuals. But if they are humans attempting to fulfill these idealized roles, then they will be influenced by their position and past, and those attempting to communicate them will ignore those influences at their (client’s) peril.”
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