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A View from the Bench
By Hon. Anne E. Lazarus
As many of you know, I was elected to a seat on the Pennsylvania Superior Court in November 2009. I began my term in January 2010. Now that I have been in my new position for a year-and-a-half, I thought I would share with you some thoughts about my transition to the appellate bench after nearly twenty years in the trial court.

 

As a trial judge, it is not an exaggeration to say that I had the best of all possible worlds. First, I was lucky to be a member of the Philadelphia bench, which prides itself on its collegiality and camaraderie. There were always opportunities to interact with my colleagues through brown bag lunches, continuing judicial education classes, committee assignments, and social functions. I tried to take advantage of as many of these opportunities as I could and am glad that I did. Second, a trial court judge possesses a great deal of autonomy and power. She is independent, has broad discretion with regard to evidentiary issues, and is the master of her courtroom. As every attorney knows, you may disagree with a judge, but at the end of the day, the judge's impact on a jury will always outweigh that of counsel. The judge has the final say on the evidence, the law, and may even - albeit inadvertently - influence the jury's attitude regarding a party or its counsel as a result of her demeanor on the bench. A trial judge's decisions are ultimately hers and hers alone; consensus is not a part of the job description.

Consequently, my adjustment to the Superior Court was not without its difficulties. Although I believe the presence of former trial judges on the appellate court is highly beneficial to all involved, the prospect of such a transition can be daunting. You are no longer in complete control of your docket, your schedule, or even your time. Although I worked hard as a trial judge, I found the sheer volume of the Superior Court workload to be staggering. There are over 8,000 filings a year, of which 6,500 are appeals. I read upwards of 350 pages per day and have taken to wearing reading glasses on a regular basis.

The loss of a certain amount of autonomy has also been an adjustment. For every opinion that I author, two of my colleagues are given an opportunity to vote on whether they agree - not only with my decision, but the rationale I used to get there. If I cannot persuade at least one of them to join me, my position becomes the dissent. If I author an en banc opinion, at least four other judges need to agree with me. The process of arriving at a consensus on a decision involves much discussion, revision, and even negotiation. Thankfully, I have found my new colleagues to be knowledgeable, concerned about presenting a consistent position on the law, and real sticklers for detail. When your primary work product consists of lengthy opinions, you quickly discover just how often spell-check really doesn't cut it.

As a former trial judge, I have found it challenging to review trial court decisions without speculating as to whether I would have reached the same result. It can be very tempting to want to reweigh the evidence or come to a different conclusion than the trial court or jury did. However, I am aware that my job as an appellate judge is simply to determine whether the record and the law supports the trial court's result.

Because I am now reviewing the rulings of many of my former colleagues, I find it helpful to read the trial court records "blind," not knowing the identity of the trial judge, so that I do not find myself making assumptions that might affect my decision-making. In addition, all of my law clerks weigh in on the memoranda and opinions that come out of the office. They understand that, regardless of my preliminary vote on a case, they are expected to persuade me otherwise if the law does not ultimately support my original position.

Finally, I thought it might be helpful to share a few practice tips:

  • Read the Rule of Appellate Procedure and follow them.
  • Make sure that the lower court record is complete, transcripts and all. If it is not in the record, it does not exist for purposes of appellate review.
  • Concentrate on the issue you think is your strongest.
  • If your client can afford it, ask for oral argument. It is worth the time and effort.
 
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