A little more time ought to be allowed for a lawyer to present oral argument before a judge takes over.

What is the proper role of a judge, particularly an appellate judge, during oral argument?

Samuel C. Stretton.

There is no proper role. As long as a judge is fair and courteous and dignified, a judge has a right to hear cases and make decisions.

This year there have been several articles discussing whether or not appellate judges—and sometimes trial court judges—are too actively involved in the argument aspect of a case. Clearly, there have been changes in the role of appellate judges in the last 47 years that this writer has been practicing law.

If one listens to tapes of old U.S. Supreme Court arguments, although obviously there is questioning, it's not quite the same constant and competitive questions. Now the questions often suggest the judge knows the answer but is just trying to advance the judge's agenda in conveying the judicial challenges.

Similarly, lawyers who practice in the Pennsylvania Commonwealth Court, Superior Court and Supreme Court in the '70s and '80s saw a much lower level of questioning and involvement by the judges and justices. All of that has changed.

As an advocate or litigant, it is difficult at times to get one's point across. That is why it's very important to have one's briefs outline the issues in a logical fashion. Younger lawyers don't realize, but sometimes the summary of the argument is one of the most important parts of the brief because that is looked at very closely, at least initially.

The old adage was that the lawyer should hope and pray judges will ask questions. But the modern questioning that often takes over the argument might undermine that ancient piece of wisdom. When judges ask questions, this gives an advocate a chance to deal with issues of concern that are bothering the judge. Now the questions are beyond just educating a judge. The questions sometimes are a way for a judge to try to trap the lawyer or to try to enhance the judge's agenda with his colleagues in terms of a decision-making process. Whether that is right or wrong or a good or a bad way of hearing arguments is not known. But the concern is that at times it prevents a lawyer from making their logical argument.

In days of old, some judges didn't place a lot of reliance on oral argument. A very excellent judge, Ted Rogers, in the Commonwealth Court in the early years, at times would have his opinions written before the oral argument. Anyone who argued before Rogers knew his mind was pretty well made up. There was nothing wrong with that and he was a brilliant jurist and a very courteous man. Many of the judges too, at times, don't give a lot of weight to oral argument. There are some judges who have already made their mind up, but will "suffer" through the oral argument at least for appearance sake.

Perhaps judges should defer their questions and give each lawyer several minutes to develop an argument before questions are raised. This is particularly true if people elect an expedited argument in Superior Court. Some lawyers get the first sentence out and then the rest of the five minutes is spent answering question after question.

Some legal scholars have suggested that perhaps there ought to be a least an initial time period where it's agreed no questions will be asked. If the argument is 15 minutes long, perhaps the first six to seven minutes should be for the lawyers to speak. Then questions can be allowed by the judges. On the other hand, the spontaneity of argument sometimes suffers.

Perhaps the level of oral argument and oral advocacy has declined in recent years so the judges feel more compelled to jump in and participate more freely. In recent years, every lawyer knows the opportunity for trial work and appellate advocacy has lessened. On the other hand, anyone who deals with young lawyers knows that many of them are absolutely brilliant and their law school training has enhanced their knowledge on constitutional issues and other issues of importance.

Maybe the best dividing line is that judges should ask questions for clarification or to test whether the lawyer's argument has a firm basis in case law and the facts. But if a judge is asking questions just to demonstrate the judge has read the record or trying to advance the judge's position during argument that they will discuss later at the judicial conference, perhaps those questions would be better off not asked.

Many lawyers who have argued, particularly in the Pennsylvania Superior Court, know the frustration that when there's a good argument or a lot of give and take with the judges, and then received a memorandum decision that doesn't discuss any of the hotly debated original issues. When that happens, it makes a lawyer question what was the purpose of the argument or what was the purpose of all the questions. It also raises concern among the litigants that the opinions are all being written by law clerks who didn't listen to the oral argument. Of course, with the Superior Court's caseload, it would be impossible for the judges to write all the opinions themselves. But issues hotly debated pursuant to judicial questioning during the trial ought to be referenced in the briefs.

But to return to the question: what is the role of judges in oral argument? The answer is whatever the judges wish assuming they act with courtesy and dignity and answer questions that are obviously relevant to the issues. But there are nagging concerns when the judges, sometimes in competition with each other, take over the argument leaving little time for the lawyers to advance their viewpoint. It does seem, assuming the lawyer is prepared and has a logical argument, perhaps a little more time ought to be allowed for the lawyer to present those viewpoints before a barrage of judicial questions take over.

A judge owes a duty of disclosure if friends appear in his courtroom.

As a judge, what do I do when friends appear in my courtroom either as lawyers or as litigants?

Obviously, any time a judge knows someone or knows them well, at a minimum the judge owes a duty of disclosure to the other parties. In days of old, most lawyers and judges knew each other. Now, the bar has gotten so big that oftentimes lawyers don't realize a judge is friends with their opponent or opposing counsel or even with the litigants. So, the initial answer is that of disclosure. Disclosure doesn't mean disclosure of every acquaintanceship. If that was the case in the smaller counties everyone would be disclosing everything. But friendships that are more than maybe a nod or a wave of the hand ought to be disclosed.

The Code of Judicial Conduct deals with disqualifications in Rule 2.11. Under Rule 2.11, a judge shall disqualify himself when the judge's impartiality might be questioned. Then there is a list of examples such as the judge has a personal bias or prejudice against the party or lawyer, the party or litigant is familiar to the judge or the judge's domestic partner, the judge has an economic interest in the subject matter or the judge's relatives do, the judge has made contributions to a campaign and there is a rebuttal presumption if the contribution is less than $250. The judge has made public statements how he would decide a case either during the campaign. Another example is if the judge had served as a lawyer on the case at one point or was a material witness then, of course, the judge couldn't hear it.

The question is how about friends? The American Bar Association on Sept. 5, issued Formal Ethics Opinion 488. It's a good opinion and talks about when a judge should disclose and potentially disqualify if they have friendships or social relationships with lawyers or parties. The committee cites Modern Rule of the Code of Judicial Conduct 2.11 and highlights mandatory disqualification if a judge's impartiality might reasonably be in question.

The opinion talks about the need for public confidence in the judiciary and to avoid the appearance of impropriety. The appearance of impropriety is highlighted in other sections of the Code of Judicial Conduct primarily in Rules 1.1, 1.2 and 1.3.

The ethics opinion suggests that whether or not a judge's impartiality might reasonably be questioned if there is a friend or social friend, their disqualification would have to be evaluated on the objective reasonable person standard. The opinion noted that judges are presumed to be impartial. The committee highlighted that judicial disqualification is the exception rather than the rule.

The committee noted that a judge should avoid disqualifying themselves too quickly because if they do, litigants will quickly learn that and use issues as a means of judge shopping.

The committee then broke down three types of relationships with a judge. One is acquaintances, the second is friendship, and the third is close personal relationships. The committee noted that a judge need not disqualify themselves just because they are acquainted with a lawyer or a party. The committee noted as to friendships, that would depend on the nature of the friendship and close relationship. The committee noted that the decision is ultimately made by the judges.

As to acquaintances, the committee noted a judge's acquaintanceship with a lawyer or party by itself is not a reasonable basis to question the judge's impartiality. The committee noted the judge had no obligation to disclose the acquaintanceship. But the committee noted the judge could if he wishes to.

As to friendships, the committee noted friendships means some degree of mutual affection. The committee noted friendships can be different. There can be a professional friendship and there are social friendships. Usually, social friendships are closer than professional friendships, though perhaps with a workaholic judge, it doesn't make a difference.  A judge and lawyer who were law classmates or were friends for years is one example. The committee noted if a judge and a lawyer exchange gifts at holidays or special occasions or regularly socialize, that would be an important consideration. If there had been a mentor relationship at one point or sharing of vacations before the judge was elected, that would be an important consideration. The committee noted that not all friendships are a basis for disqualification. The committee noted and quoted a decision that social as well as official communications among judges or lawyers can improve the quality of legal decisions. The committee noted social interactions also prevent judges from being isolated on the bench. The committee noted that the judge doesn't have to disqualify themselves just because a party or a lawyer is a friend. But the committee noted there can be situations where the relationship is so tight that the judge's impartiality could be reasonably questioned. The committee noted a lawyer should disclose to other lawyers and parties about the friendship. If someone objects after the disclosure, the judge has the discretion to either continue or disqualify. What the judge decides for me on the case, they should put their reasons of record.

The third category of close personal relationships are treated differently. For instance, if a judge is romantically involved with a lawyer or party, the judge must disqualify himself if there is a romantic relationship or a desire to pursue such a relationship. If, for instance, a female public defender is appearing in the judge's room regularly and they are starting to date or going out to dinner, then the female public defender should no longer appear in the judge's room. A judge has to disclose other intimate or close personal friendships to the parties. It's the obligation according to the opinion to do that even if the judge believes he or she can be impartial. Clearly, if one is very close to someone or romantically involved, the judge should probably just disqualify themselves.

Formal Opinion 488 also deals with waiver of disqualification. If there is a disclosure and parties agree that a judge should not disqualify then normally a judge can participate. But the key thing for the judge is to put the wavier agreement of the parties that the judge can participate on the record.

The American Bar Association's Opinion 488 makes a lot of sense and ought to be reviewed and considered by any judge who has a disqualification issue, particularly on friendships or relationships. There is nothing more damaging to the image and integrity of the judiciary than parties believing that the judge has ruled against them because of personal relationships or friendships. That's why it is so important to raise the issues, have a hearing and make the appropriate decisions.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.