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Supreme Court justices become ‘potential jurors’ at ISBA panel

June 7, 2019

The tables were turned on the Indiana Supreme Court justices Friday morning.

Instead of being the ones to ask the questions, the five justices were treated as potential jurors during a panel discussion at the Indiana State Bar Association Solo/Small Firm Conference in French Lick. Indianapolis attorney Ann Marie Waldron, chair of the conference, led the discussion by asking the justices personal questions about their lives and interests in the same way attorneys might question prospective jurors.

The Q&A session displayed a different side of the court, showcasing the justices’ fondness for one another and a lighter side of their personalities. In contrast to the lawmaking personas they put on while hearing cases on the bench, Friday’s session revealed the jurists’ senses of humor and family-like bond.

Some of the questions sparked passionate responses. When asked about their favorite sports teams, Justice Geoffrey Slaughter, a former Chicago practitioner, did not hesitate to share his love for Chicago Cubs baseball. But as a son of Milwaukee, Wisconsin, Justice Mark Massa brought an MLB rivalry out into full view by pledging his allegiance to his hometown Brewers.

Other questions made the justices stop and think. Asked how they would spend a free Saturday, the court members said they weren’t too familiar with the concept. Chief Justice Loretta Rush surmised that if she had a day to herself, she — as a mother of four and grandmother of two — would spend time in the quiet with nobody asking her any questions.

Still other questions let the justices show off their sense of humor. When asked to describe her colleagues, the chief justice simply said “male,” prompting a roar of laughter from the audience, including her all-male colleagues.

But on a more serious note, the chief called the justices of the Indiana Supreme Court “the kindest people she’s ever had the pleasure of working with.” The rest of the court echoed her sentiments, with Justice Steven David saying he views his court colleagues not as friends, but as family.

Indeed, David said the members of the court look out for one another and value their colleagues’ opinions. And Justice Christopher Goff, the newest member of the high court bench, said the five jurists get along and work well together, noting David, in particular, served as a mentor to him during his first days on the bench.

The justices’ answers also revealed that they share many things in common. For example, asked what they would be doing if not in the law, David, Slaughter and Goff all said they would be teachers. Goff and Rush both have four children and talked about spending time with their families, while Massa, David and Slaughter all share a love of sports.

Goff joked that used to be a sports fan, particularly of the Indianapolis Colts. But now that his son has moved out and he is at home with only his wife and daughters, he said his days are now spent watching shows such as “iCarly” or “The Bachelor,” rather than watching a game.

The jurists seemed to revel in their close relationship, saying it’s not common among all courts. Rush said the same types of relationships are present within the Indiana Court of Appeals, and she credited Chief Judge Nancy Vaidik, who was in the audience, for fostering that environment.

Part of the reason for their collegiality, Massa said, is the merit-based selection system used to pick the members of the high court.

“It doesn’t just happen — I think the way we are selected has something to do with the way this court has functioned over the years,” Massa said. “When you look at some of our neighboring states where you have multi-million-dollar television campaigns with money pouring in from the two extreme poles in very, very contentious races — when people get to a court after having come out of a system like that, I think they’re more firmly entrenched and more prone to be hostile toward each other. That doesn’t happen in Indiana, and I think we’re very fortunate for it.”

The structure of the panel later changed to allow the justices to answer presubmitted questions about their thoughts and tips on appellate practice. Much of the conversation was devoted to the difference between trial and appellate advocacy, with the justices saying the distinctions between the two are critical.

David, for example, said trial practitioners who take a case all the way to the Supreme Court can sometimes assume the role of a trial lawyer before the appellate bench, seeking to present evidence and make their case as they would to a trial judge or jury. But appellate courts don’t have the same role as trial courts, he said, and the Supreme Court in particular is concerned most with issues that will have a significant impact on Indiana law.

Slaughter offered similar comments, saying “the best appellate advocates are the ones who understand the process.”

In a similar vein, the court discussed the importance of appellate briefs, saying briefing is the heart of appellate advocacy, even more so than oral argument. To that end, they stressed the importance of presenting the facts and legal issues in a clear, concise and convincing manner.

When presenting an appellate question in a petition to transfer, for example, Massa advised against framing the question as “Did the Court of Appeals err below?” He also said he pays attention to the summary of the arguments presented in the briefs, believing the most effective briefs are the ones that clearly present the legal argument in just a few paragraphs.

On the issue of transfer, Rush said appellate practitioners have five chances to convince the court to take their case, and they need to succeed on three of those chances to get their case before the bench. Finding that success means framing the facts and legal issues in a way that shows the court why a case is significant enough to warrant review from the state’s highest court, specifically in light of Appellate Rule 57.

“How you frame the issue, how you tell us that this is a case that we should take transfer on, by not just saying, ‘This is a case you should take transfer on, period,’” Rush said. “Say why.”

The court also discussed the importance of small and rural practices, a pertinent issue at the Solo/Small Firm Conference. The chief justice urged solo and small firm practitioners to share the names of colleagues, particularly rural colleagues, they believe should be serving on state task forces and commissions. Rush said the court is always open to taking phone calls from attorneys with suggestions, and David sought to prove that point by giving out his cellphone number.

The panel ended with Goff praising the work of solo and small firm practitioners, saying they put out fires every day that are “critically important” to Hoosiers and to the legal profession. The theme of this year’s conference is Small Firm Superheroes, and Goff said the practitioners live up to that ideal.

“You are the superheroes,” he said.

For more of the justices’ comments, check out the @Indiana_Lawyer Twitter feed.

 

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