Members of the appeals courts headquartered in Denver gave lawyers a peek on Friday into their behind-the-scenes operations and offered tips about presenting a compelling case to the people making decisions.

“You have to pay attention to the entire bench, right? I think one mistake that you can make, as the questions start coming in, you might start assuming, ‘Oh, that justice is not gonna be on my side. I’m just gonna focus on the (others),” said Justice Carlos A. Samour Jr. “We talk right after oral arguments. And sometimes one person can convince some others.”

Samour joined members of the Supreme Court and state Court of Appeals at the annual Appellate Practice Update sponsored by the Colorado Bar Association. The topics included oral and written arguments in cases, and the workflow for Court of Appeals judges.

“For what it’s worth, imposter syndrome exists in all quarters, including the Colorado Supreme Court. So, everybody’s nervous,” said Justice William W. Hood III, speaking on the oral argument panel alongside Samour. “But we’re not there to make you look foolish. We’re really just trying to have a dialogue.”

He added that his court looks for ways to narrowly resolve an appeal and avoid unintended consequences, which could mean asking hypothetical questions about the scope of a potential ruling in each party’s favor. Hood also advised lawyers to be prepared to give a succinct description of exactly what rule the Supreme Court should lay down in its precedent-setting decisions.

“They give you paragraphs. And what we’re looking for is a sentence,” he said.

Judge Sueanna P. Johnson of the Court of Appeals said most parties do not ask for oral argument in her court, although the judges sometimes have questions about the underlying case that would benefit from an in-person explanation. She also observed there has been heavy turnover on the appeals court, and suggested lawyers familiarize themselves with the new members.

“I had a case that an attorney came in and he held up a little piece of paper and said, ‘See?’ And I couldn’t see it,” said Johnson, who is visually impaired. “It’s not that that offended me, but it showed he hadn’t done his research as to who the judges on his panel were.”

Behind the scenes

Court of Appeals Judges David H. Yun and Christina F. Gomez described their workflows once an appeal is ready for consideration, which typically consists of an opening brief, an answer brief and a reply brief, plus materials from the trial court.

“If there’s a district court order, I’ll read that first. And then I usually have the briefs on one screen and the record” on the other, said Yun. “I’m constantly going back and forth and looking at things. I usually start with appellant’s argument on the first issue. Then, I don’t read the rest of the brief. I go to the response on that argument and the reply.”

He added that if the briefs contain repetitive arguments, “I’m gonna know it. It’s not like I read the opening brief, take a couple of days and read the reply brief.”

Gomez said that “it depends,” but sometimes she will read an entire brief and other times she will go issue-by-issue, as Yun does.

Gomez added that if a lawyer is litigating opposite an attorney, or even a self-represented party, whose brief misrepresents the law or contains other problems, the best strategy is to determine what the person is arguing, explain it to the court and argue why it is erroneous.

“Keep it professional because it does turn us off when someone who is responding to that uses really colorful language to say, ‘This person is a liar and an idiot,'” she said. 

After the parties file their arguments, the clerk’s office assigns cases to three-judge panels, known as divisions. The most senior judge is the presiding judge, who randomly assigns an author for each decision at the outset. Sometimes, Yun said, assignments will be adjusted so that one judge is not overly burdened with complex cases.

“There’s at least one judge who will actually meet with the division and divide up the cases. But even during those meetings, I don’t think people have strong feelings and say, ‘I really want this case’ or something,” Yun added.

After a division drafts the decision and potentially hears oral argument, the Court of Appeals will decide by majority vote whether to “publish” an opinion. Although all opinions are available online, only those designated as published are meant to set precedent for trial judges to follow. As part of the decision-making, the court’s other judges can offer their thoughts to the author.

“We go through a lot more processes in our court when they’re going to be published and precedential,” said Gomez. “There are times, for instance, that we’ll more likely write a special concurrence or dissent if something is going to be published.”

“Recently, I know an opinion was withdrawn from publication after a comment. … We all take the comments from other judges seriously. We actually write memos responding to those comments,” said Yun. “I think 90% of the time, we modify the opinion a little bit from the comments.”