Members of Colorado’s Supreme Court and Court of Appeals spoke to law students on Friday about when and how they compromise in their decision-making — and when they feel compelled to register disagreement.

“We have different considerations than the Supreme Court,” said Judge Sueanna P. Johnson of the 22-member appeals court. “They are doing less than 100 cases (a year) where that becomes the law of Colorado, and they are thinking about the law and policy implications for the state.”

She added that her court takes its role seriously because for more than 90% of cases that do not receive Supreme Court review, “that’s the end of the line for them. But that’s a different consideration than, ‘How does this bigger picture look?’”

“We disagree well because our job is not necessarily to agree,” added Justice Maria E. Berkenkotter about her seven-member court. “That’s how the system is supposed to work.”

Berkenkotter, Johnson and Judge David H. Yun spoke at the Ralph L. Carr Colorado Judicial Center to a group of predominantly first-year law students. The discussion, along with a tour of the court and a meet-and-greet with judges, was sponsored by the University of Colorado’s chapter of the American Constitution Society, which is a progressive legal group.

According to judicial branch data, approximately 1,300 cases were filed in the Supreme Court in the last fiscal year, 73 of which culminated in written opinions. The bulk of filings seek review of Court of Appeals decisions, of which there were more than 1,500. Unlike the Supreme Court, the Court of Appeals does not get to decide which cases it hears.

“I don’t view the opinion as my opinion, even though my name is on it. I view it as the entire division’s opinion,” said Yun, using the formal term for the three-judge panels that decide all cases. “Sometimes, I don’t necessarily agree with a certain approach. But if the outcome is the same and I don’t object strongly, I will include it to reach a decision.”

He spoke about a recent appeal in which he re-wrote the opinion three or four times. Yun said retired Justice Alex J. Martinez, who serves part-time on the Court of Appeals as a senior judge, kept pushing him to look at an issue in a different way.

“We had four conferences,” Yun said. “I think the opinion came out better, but at times I was struggling to understand his position. And I was like, ‘Why don’t you just write separately?’ But I didn’t say that.”

Berkenkotter said there are sometimes compromises on the Supreme Court, but members are “not gonna die on every hill.”

“We’ve had cases where they’re assigned, and the first (draft) is circulated. Sometimes, they don’t get voted on for a couple months because there are things going on behind the scenes where people are working on what the final product looks like,” she said.

Berkenkotter said that occasionally, a justice will flip their vote and a 4-3 decision could become a 3-4 one.

In the Supreme Court’s most recent term, 80% of its opinions were unanimous. Seven percent, in contrast, were decided 4-3. Although statistics are not available for the Court of Appeals, dissenting and concurring opinions are relatively rare.

“I didn’t want to suggest we are just reaching agreement for the sake of agreement. It’s more, we agree with the result. And how we get there, we don’t agree with. That’s where we might compromise,” said Yun. “If I think that the outcome should be different, I wouldn’t compromise.”

Johnson said that as a practicing attorney, she used to hate reading opinions that indicated the court was “assuming without deciding” there was an error. Some of that language may indicate a compromise to reach a group decision, she said.

“You’re never gonna have a perfect trial. There will always be errors,” Johnson said. “Sometimes, determining whether there is error is such a complex issue, but the evidence is overwhelming. This person’s DNA was at the crime scene and there were witnesses that said he or she did it and on and on. And you think, ‘How much time do I need to sit through wondering if there’s an error the trial judge made, when at the end of the day it didn’t affect the verdict?'”

The participants in the discussion also spoke about how they process cases involving traumatic subject matter. Yun said the judges “have to plow through” those issues, but they will sometimes avoid repeatedly assigning gruesome appeals to the same law clerk one after another.

Johnson said some materials, like a video of a person being shot, can be triggering. But she tries to have “a very analytical view of it” and take time off for her own mental health.

“They have already been judged by a jury of their peers. It’s my job to make sure they got a fair trial,” Johnson said. “And if I think about it in those terms, those facts — no matter how horrible they are — they kind of become secondary.”

“When I was first appointed to the Boulder District Court bench in 2006, no one had these conversations,” added Berkenkotter. “I don’t think I know a single judge who would have said and described the things that Judge Yun and Judge Johnson described” about professional wellness.