Month: March 2023

Tenielle Fordyce-Ruff

Some of my early essays in this column covered ways to make paragraphs better.[i] But it’s been a while since I returned to the idea of constructing good paragraphs.  If you’ve been a long-time reader of The Advocate, you know tips for making strong paragraphs like sentence length, transitions, cohesion, and unity.

But what about balance? Or style?  How do all these concepts come together?

Legal writing needs to function well, but it doesn’t need to be boring or so utilitarian that the reader can’t enjoy reading at times.  So, let’s look at some way we can balance the need for function but also add occasional panache to our paragraphs.

Size Matters

My favorite analogy that describes the legal reader is that she is a juggler.[ii]  It goes like this: “Most competent jugglers can juggle two and three balls with little effort. Likewise, most legal readers processing a sentence can keep two or three ideas aloft in their minds before the period cues that the sentence has ended and the ideas presented can finally be integrated. But things get risky from there.”[iii]

Trying to juggle too many balls, like trying to process a sentence with too many ideas packed into it, is taxing.[iv]  And eventually both the juggler and the reader will drop something.  Now for jugglers this isn’t bad, but when we are trying to convince our readers that our position is sound, causing them to drop an idea is bad.  Indeed, “the reader will hate you for making her work so hard.”[v]

So, using shorter sentences with fewer ideas packed into them ensures that the reader can comprehend the ideas and still have the brain power to do the critical legal reasoning we are asking of her.[vi]

But Variety Does, Too

Prose sings when it has “variety in sentence length and structure, not adhering to strict medium-length-sentence-only rules.”[vii]  To harken back to a favorite example I shared years ago: “This sentence has five words. Here are five more words. Five-word sentences are fine. But several strung together become monotonous. Listen to what is happening. The writing is getting boring. The sound of it drones. It’s like a stuck record. The ear demands some variety.”[viii]

Did your mind start to drift because the sentences sounded so staccato?  Again, not so critical when perusing this column, but using all short sentences is another sure-fire way to make your legal reader hate you.

So, how do you build paragraphs that allow the reader mental space to do legal reasoning yet keep her interested in the prose?  By creating a balance.

Start Small

First, the best paragraphs start with both a short word and a short sentence.  Changing from heavy, long transitions to short ones “can lighten your writing overnight, almost as if you were oxygenating your style.”[ix]

One-word transitions followed by an easy-to-grasp assertion in the topic sentence help the reader for two reasons.  One-syllable transitions (but, yet, and, nor, so) create a tempo that quickly shows the logical link between the last and current paragraph without creating an overload for the reader.[x]  And short topic sentences quickly give the reader the context that will help her see the logic and reasoning in the paragraph.

Grow Out

While legal readers prefer short sentences, paragraphs can build.[xi]  Longer sentences can add elegance, eloquence, and style to writing.[xii]  That’s not to say that you should strive to simply add words to the sentence in the middle of a paragraph.  In fact, sentences full of excessive adjective and adverbs, clichés, overdeveloped metaphors, or pretentious vocabulary can lead the reader to pay attention to the writing itself instead of the ideas and reasoning the writing needs to convey.[xiii]

So, if extra words don’t help, what does? First, never lose sight of the function of legal writing: to be clear, competent, readable, and precise.[xiv]  When in doubt about whether writing is too much, simply don’t.  Always err on the side of function.  But, some subtle techniques used sparingly can add a touch of style.

Alliteration & Assonance: the repetition of vowel or consonant sounds.[xv]

Cadence: the rhythmic flow, like the beat of music.[xvi]

Parallelism: the use of similar grammatical structures in pairs or series of related words, phrases, or clauses.[xvii]

Onomatopoeia: words that represent sounds (these can make writing pop!).[xviii]

Metaphor & Simile: direct and indirect comparisons (but only if they are fresh or insightful).[xix]

And, occasionally joining two closely related sentences into a single, longer sentence can add some sophistication to your writing.[xx]  When two sentences are about the same person (party or court), shift the one to a dependent clause to add some elegance.

Consider this example from a recent Idaho Supreme Court opinion:[xxi]

On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares. It concluded that substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.

A simple shift could help the flow and eloquence:

On intermediate appeal, the district court affirmed the magistrate court’s valuation of the BSA shares, concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares.

Or look at this possibility:

Concluding substantial and competent evidence supported the magistrate court’s determinations on valuing the BSA shares, the district court affirmed the magistrate court’s valuation of the BSA share on intermediate appeal.

End with Pith

Finally, end the paragraph with another short, easy-to-read sentence.  Not only does this sum up the ideas in the sentence, it allows the reader an opportunity to check her understanding of the content in the paragraph.  And, as an added bonus, you can exploit a position of emphasis with a strong sentence.[xxii]

Connect the Branches

We all want our writing to interest the reader. So perhaps take this image as the parting message.  Make your paragraphs shaped like Idaho’s state tree: The Western White Pine. These trees are small at the top, grow wider as they descend toward the forest floor, then narrow again as the trunk and the ground meet.

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[i] Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part I, 56-Sep Advoc 58 (2013); Tenielle Fordyce-Ruff, Ten Steps to Build Better Briefs Part II, 56-Oct Advoc 62 (2013).

[ii] Andrew M. Carter, The Reader’s Limited Capacity, 11 LJALWD 31, 31 (2014).

[iii] Id.

[iv] Id.

[v] Id. at 32.

[vi] Id. at 50.

[vii] Id. at 227.

[viii] Tenielle Fordyce-Ruff, Robust Writing: Crafting Better Sentences, 58-May Advoc 60, 61 (2015).

[ix] Ross Guberman, Point Made 226 (2d ed. 2014).

[x] Id. at 227.  For more on transitions see Tenielle Fordyce-Ruff, Connections Count Part I: Generic Transitions, 60-Aug Advoc 46 (2017) and Tenielle Fordyce-Ruff, Connections Count Part II: Orienting & Substantive Transitions, 60-Sep Advoc 48 (2017). 

[xi] See, Tenielle Fordyce-Ruff, Robust Writing; Crafting Better Sentences, 58-May Advoc 60, 66 (2015).

[xii] Ross Guberman, Point Made 235 (2d ed. 2014).

[xiii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 149 (3d ed. 2009).  For tips to help reduce excessive words see Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48 (2013) and Tenielle Fordyce-Ruff, Three Tips for Concise Writing 60-Oct Advoc 56 (2017).

[xiv] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 148-49 (3d ed. 2009).

[xv] Id. at 150-51.

[xvi] Id. at 151-52.

[xvii] Tenielle Fordyce-Ruff, 5 Tips to Combat Verbosity, 56-Jan Advoc 48, 49 (2013).

[xviii] Ann Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation & Style for the Legal Writer 158-59 (3d ed. 2009).

[xix] Tenielle Fordyce-Ruff, Adding Eloquence to Your Legal Writing with Figures of Speech, 56-May Advoc 48, 48 (2013)

[xx] Want more on joining independent clause correctly? See Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part I: Joining Independent Clauses, 54-Feb Advoc 44 (2011) and Tenielle Fordyce-Ruff, Creating Separation & Emphasis in Your Writing Part II: Using Punctuation within Sentences, 54-Apr Advoc 43 (2011)

[xxi] Lamm v. Preston, 2023 WL 125250 at *4 (Idaho January 9, 2023).

[xxii] Readers pay more attention to information just before or just after a break in the text.  Mary Beth Beazly, A Practical Guide to Appellate Advocacy 229 (5th ed. 2019).

Chief Justice G. Richard Bevan

Delivered to the Idaho Senate and Idaho House of Representatives on January 18, 2023.

Introductory Remarks

Have you ever considered that Idaho’s courtrooms are the only places in the state where our citizens can witness all three branches of government in action at the same time? From the application of the laws passed by you, to the enforcement of our state’s laws by the executive branch, to the courts’ administration and interpretation of the laws, these proceedings affect Idaho’s people in profound ways.

I am so grateful for how Idaho’s judges manage these important moments in people’s lives. They, together with the attorneys and staff who labor there, ensure that the promise of justice for people is not merely a slogan, but a reality.

There may be some here who have never visited an Idaho courtroom. I also recognize that a few of you are attorneys. Some of you may have served as jurors or had cases before the courts yourselves. As the people’s representatives, I invite and encourage you to visit the courthouses in your own districts, to see the amazing work that takes place in these government buildings every day.

Idaho’s Judicial Branch fulfills specific duties secured by Idaho’s Constitution, most prominently Article I, Section 18: “Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.” Our courts fulfill these responsibilities in a variety of circumstances: hearing prosecutions for crimes from petit theft to murder, giving children new hope through adoptions, resolving multimillion-dollar business or probate disputes, and managing contentious breakups of families. Many of these are very demanding and stress-filled events.

A participant in Idaho’s constitutional convention in 1889 observed: “[I]f there is any place in our whole system where politics should be left out of an office, it is in that of the supreme court of the state.” For this system to work correctly, our judges cannot make decisions based on politics, popularity or the public’s wishes, no matter how forceful the drumbeat of the populist band. We construe the law as written. As Chief Justice Roberts has said, the role of a judge is to call balls and strikes; we are not to pitch or bat. Judges simply must follow the rule of law — which applies to us in the Judicial Branch the same as to anyone else in this state. Sometimes this means we reach unpopular conclusions that raise questions. But this is what our Constitution demands and what our judges provide: justice based on the rule of law, no matter the judge’s personal views of the legal principle being applied.

The Idaho Supreme Court’s rulings sometimes draw the most attention, but nearly all the courts’ work is done in Idaho’s local courtrooms — in places like Bonners Ferry, Soda Springs, Driggs, and Weiser. Our 150 magistrate and district judges toil across more than 120 courtrooms in Idaho, rendering decisions based on an evenhanded application of the law. Each of them makes sacrifices for a career in public service.

A judge and court staff must keep the thousands of cases moving while treating all parties without favoritism. And their work does not stop at the courtroom door: Judges volunteer to lead treatment courts and provide education in their communities.

For judges to deliver on all that I have described is no simple task. The job of a judge has become increasingly fraught. The need to remain impartial means it can be isolating work. And personal safety is a topic increasingly on our minds.

President Dwight D. Eisenhower said, “The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.” Unfortunately, we live in an age when those who object to the balance in our fair and democratic republic seem increasingly disposed to tearing it down. You see it in your own communities. This climate affects the judiciary in increasingly direct and dangerous ways.

We judges understand that disagreement with our decisions is part of the landscape in which we operate. But when disagreement becomes personal, to the point of threats against personal safety and security, with individuals publishing our private information online, or coming to our homes for face-to-face confrontation, which I and other Idaho judges have experienced, a line has been crossed that must be reinforced — and reinforced convincingly.

We now see protests at judges’ homes meant to, I suppose, disturb their peace, to scare them into submission or to sway their rulings. Some may see this as a means to undermine the core of the rule of law. In some circles the hue and cry has escalated to threats against the lives of judges, including justices on our nation’s highest court. In Idaho, we see veiled threats made online against the courts.

The judges to whom these threats are directed are simply doing their difficult job of making decisions within an established framework of law, regardless of their personal feelings about those laws. These interactions at their homes, at their places of respite and peace, are not just an affront to the rule of law, but also a danger that we ask you to address. Indeed, we have become sadly aware in the recent past of a judge in Wisconsin who was murdered, and judge’s family members in New Jersey and Illinois being killed.

These circumstances deter otherwise talented individuals from becoming judges. Last spring, we surveyed members of the Idaho State Bar about judicial service as a career. Among their most common concerns about becoming a judge was our increasingly polarized political environment. Among all the bills you consider this session, please support any legislation that says two things: (1) the independence of the judiciary must remain inviolable, and (2) judges’ safety is paramount.

Judicial work goes beyond hearings and trials. The job description is about resolving people’s disagreements, while also supporting growth in the people we serve, and developing healthier communities.

One of our deputy trial court administrators recently picked up a lunch order. The manager at the restaurant identified herself as a former drug court participant and said how grateful she was for our judges who gave her a second chance. Her life change wasn’t from a one-and-done hearing before a busy judge. It involved attention and investment by a judge who volunteered to work extended hours, in addition to her or his standard caseload, toiling in early mornings or late nights, to intervene directly in that person’s life and improve her outcomes.

With all this in mind, one of the most important requests I bring you this year is for a salary increase for our judges. Judicial compensation by law is set separately from that of other state employees, and thus requires both substantive legislation and an allocation from the General Fund. Money for a judicial salary increase was appropriated last year, but the substantive statute was not updated to allow it to be paid. This left judges the only state employees not to receive a change in salary in 2022.

Only attorneys who have held a license to practice law for at least five years can seek to become judges in this state — the requirement is at least 10 years to become a district or appellate judge. In all cases, they must have also been a legal resident of Idaho and a member of the Idaho Bar for at least two years. This means our pool of potential new judges comes exclusively from Idaho.

Compensation — particularly, compensation that is more competitive with what an experienced Idaho attorney can earn in today’s market — was also among the important concerns raised in our survey of the Bar. For district court openings in 2022 we averaged just five attorneys per opening. With no disrespect to those who applied, this is simply inadequate. Indeed, our neighbor Utah’s judicial compensation commission is recommending a 10% pay raise for Utah judges based on the limited number of lawyers applying for judgeships, where the applicant pool has shrunk by more than half since 2011.

Further complicating the situation is the economic backdrop. After the workforce uncertainties of the past three years, our branch is not the only part of government grappling with how to keep positions competitive. In some counties that have granted pay increases, certain attorneys are paid as much as or more than the district judge in whose courtroom they appear. This discrepancy affects our ability to recruit highly qualified attorneys to the judiciary.

I ask that this session you consider legislation on judicial compensation that helps maintain a highly qualified and experienced judiciary.

As the third branch of government, Idaho’s judges must be independent, but we believe strongly in collaboration to serve the public. One example is the work of the Idaho Behavioral Health Council, which I will speak to later. Another example is our partnership with each of Idaho’s 44 county governments to conduct the day-to-day work of the courts. Behind each of our access to justice services, you will find dedicated court staff who process filings, develop the record, offer translation, provide security, and perform too many other duties for me to list. Increasingly, we see challenges in filling court positions, and in keeping experienced staff who find less stressful, more lucrative opportunities elsewhere.

Though our courts are a “unified and integrated judicial system for administration and supervision by the Supreme Court” (Idaho Const. art. V, § 2), we strive daily to support our county partners who have to provide court facilities. For example, when counties upgrade or renovate courtrooms, the Supreme Court provides certain equipment to ensure all courtrooms have consistent and appropriate technology to preserve the official court record, to present evidence and to manage remote proceedings when needed.

Included in these technological advances is a new system we are offering to counties that will allow courts to oversee the summoning and managing of juries more efficiently. Historically, counties have selected, purchased, and managed their own jury systems. The result is that Idaho’s citizens who are summoned to be on juries have disparate experiences and services depending on what their county can fund. Some counties have been able to provide simpler online and phone systems for jurors; others have not. Some counties have been able to text status updates to jurors; most have not. The Court’s jury management system, offered to all counties, can provide efficiencies, and simplify the process for all Idahoans called as jurors.

Many counties are now interested in using our solution as their own systems are being decommissioned, and we are offering this solution to the counties at no charge. You have a request before you this session to fund added services that will improve the options available to our counties through this advancement.

Smooth trial management helps us continue to address our case backlog. In calendar year 2022, we held over 20% more jury trials than in 2021, and over 30% more jury trials than in 2020. We have made particular headway on felony criminal cases. Statewide, we closed 12,700 felony criminal cases in 2022, more than 1,000 more than we closed in 2020.

I advised when I last spoke to you that it could take a couple of years to fully address the effects of the pandemic. I’m pleased to share that our courts are diligently addressing these circumstances. Our courthouses hosted as many trials in 2022 as they could arrange with the resources available. Mediation has been in high demand to resolve both civil and criminal cases. Some courts have found more success than others, and some had little backlog, putting them in a better place to start with. All are making noble efforts to resolve these pending cases.

Modern technology helps us move cases along, and it brings continued benefits for court users. “Access to justice” means three things for every person facing a legal issue. First, they are able to secure their rights under the law; second, they can be part of a fair process to resolve claims; and third, they receive a timely and impartial resolution of their case.

In the past, when we’ve talked about access to justice we’ve talked often about actions at a physical courthouse: ADA accommodations, language services, and on-site assistance for people representing themselves in court. Technology now offers more ways to make court access easier and less disruptive — and the people of Idaho expect us to use it.

A quick example are remote hearings done over video. Consider a single parent who may need to secure a babysitter or miss work for a 15-minute hearing — or a farmer in the field whose day is interrupted by that short court appearance. In both cases, thoughtful use of videoconferencing makes court more convenient while maintaining each person’s rights and options.

With video, interpreters can now help litigants from afar. Self-represented people get help from our court assistance offices who review their legal documents over email. And our Guide & File service helps those self-represented parties understand and submit certain filings without ever having to enter a courthouse.

The Supreme Court is rescinding the last of our emergency orders from the pandemic, but remote proceedings as a courtroom tool are here to stay. Earlier this month, we issued an order extending our current directives on remote proceedings while we study long-term rules and procedures. I look forward to updating you on what those become.

With these technological innovations, security for the courts’ digital court records is a constant concern. Cybersecurity requires vigilance to protect the courts from threats both local and international, as conflict in other parts of the world can lead to an increase in cyberattacks against governments within the U.S. Online tools to impersonate people, to steal their identities and cause chaos are only becoming more refined and accessible.

Our Information Technology Division stays hard at work installing better protections for our computer-dependent court system and its electronic records. Our digital security applications have successfully rejected the threats so far, maintaining the steady operation of the courts and the safety of our data. But cybersecurity risks are ever-changing, and the resources required to fight them are ongoing.

The primary way we pay for all our technology needs, including the advances just mentioned, is through the Court Technology Fund. It is financed through fees this body has imposed in criminal and civil court cases. But as the evidence now shows, and as my predecessors have noted through the years, running a court department with a user-funded system is unworkable. As a result, the Court Technology Fund now faces unprecedented challenges. Technology costs in the past five years have risen an average of 9% each year. That’s nearly 50%. Meanwhile, in the last three years in particular, the court fines and fees that support this fund have declined an average of 5% each year. That’s over 15%.

These increased expenses are not limited to those associated with holding court remotely. They include cybersecurity protection and computer equipment for our local clerks and judges, not to mention cost increases of as much as 30% in software licenses and credit card processing fees. The technology fund also pays the salaries for our court technology employees, which have increased in the recent past as well.

The Idaho Supreme Court is working with a third-party consultant to reassess our technology costs and develop a stable, efficient method to fund them. I look forward to when I can bring you that long-term plan. Until then, we seek your help to provide short-term support for the Court Technology Fund and its important essentials. This includes a request for one-time dollars to supplement our current technology needs, and a request to move three key information technology positions from the Court Technology Fund to the General Fund.

One other funding change is already in the making: When parties submit documents for filing, our e-filing software provider charges a fee for processing each civil filing through what are called “electronic envelopes.” We have covered the charges for these envelope fees through the Court Technology Fund. Now, the fund cannot continue to pay for these expenses as a subsidy for civil litigants. Last year the Legislature provided one-time funding for these fees while we determined a solution. Beginning in July this year, civil filers will pay this fee at a cost of no more than $5 per envelope. This fee will be a recoverable cost of litigation through court rules, and there will be no such fee associated with criminal filings.

While I have focused on our challenges thus far, I am also pleased to report on our successes.

Treatment courts provide support, supervision and accountability for people in the justice system with significant substance abuse and mental health issues. Beyond just imposing consequences, these courts help participants achieve stability, sobriety, and become valuable members of their communities.

Idaho is a national leader in the treatment court space. In what is now our twenty-fifth year since our first treatment court was launched in Kootenai County, we continue to evolve and improve them.

Various drug, veterans, DUI and mental health courts are now available in 86% of Idaho’s local courthouses. Lives change and continue to change, as nearly 500 people graduated from treatment courts in the 2022 fiscal year, and 36 drug-free babies were born to mothers participating in those treatment courts — statistics that I find delight in reporting. The ripple effect of these transformations goes well beyond the literal cost savings in corrections or to our societies from reduced drugs and crime. These benefits are profound and immeasurable for these graduates, their families, friends and communities. I invite you to attend a graduation in one of these courts to witness for yourselves the impact these courts have.

This past year, the Supreme Court adopted rules to support these courts. The rules provide uniformity for our adult treatment courts while still allowing for local variations in practice. This exercise was truly a community effort, with input from judges, our Treatment Court Committee, local stakeholders and members of the public. We hope the rules will lead to even greater success in these courts – providing good options to avoid incarceration when feasible.

In addition, the judiciary continues to support the mission of the Idaho Behavioral Health Council, our collaboration across the three branches of government focused on better solutions for those in this state who live with mental illness and addiction.

One piece of the Council’s work that the Judicial Branch directs is an exercise that brings together stakeholders from across a community’s behavioral health and justice systems to better understand how those systems overlap. These discussions lead to solutions that address gaps in behavioral health services.

We have previously relied on national facilitators to lead these exercises. In an important development, we now have skilled Idaho facilitators who can conduct this work, leaving us more flexible and capable of deeper conversations on potential gaps. As this continues, we’ll be able to see the overlap in what communities need for behavioral health training and resources — data that I hope will also aid your own decisions on funding and policy.

As you’ve seen, the work of the courts is wide-ranging and weighty. President Andrew Jackson once expressed: “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” I wholeheartedly agree and ask your support of that objective. I hope today I have helped each of you better understand the work of our branch. With your support, we will continue to accomplish our duty of delivering fair and reasoned justice every day.

Thank you.

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Sarah E. Tompkins

In recent years, the Idaho Supreme Court has been tasked with deciding issues that have a wide-ranging impact on the law in Idaho – many of these resolving issues of first impression. In doing so, their decisions reflect a deliberative, intentional approach to the manner in which the Court approaches cases and issues. It seems, at least to me, that this is a historic moment for the Idaho Supreme Court, marking a time where clearly defining the scope of appellate review, remaining mindful of the importance of preservation of the issues, and providing a clear understanding of the full rationale behind the results in every case has clear primacy.

As someone who tries to follow trends in appellate law – both from the United States Supreme Court and from Idaho’s appellate decisions – I had seen articles, interviews, and read portions of the speeches that united States Supreme Court justices had given. Some of those pieces gave me a changed perspective that caused me to revisit my own practices on both the appellate and the trial level. Selfishly, I was hoping that there might be a chance to pose some of those same large, overarching questions of jurisprudence to a member of the Idaho Supreme Court. I was both surprised and delighted when Idaho Supreme Court Justice Robyn Brody agreed to sit down with me and answer some of those questions.

Justice Robyn Brody is presently the Idaho Supreme Court’s longest serving Justice on the Court and is currently the only Justice who was seated on the Court after being elected by the people of Idaho.  Prior to joining the Idaho Supreme Court, Justice Brody practiced law in the Twin Falls area for almost 20 years.  When Justice Brody was elected to the Idaho Supreme Court, she became only the third woman to ever sit on Idaho’s highest court.

During her election campaign, Justice Brody focused on the desire to bring a tenor to the Court that emphasized objectivity and restraint in its dealings with the lawyers who argue before Idaho’s appellate courts.  This mission likely came as no surprise to those who knew her as an advocate in the Magic Valley.  Prior to her service on the Idaho Supreme Court, Justice Brody had a reputation within the legal community for her civility and collegiality.  As a result, in 2014, Justice Brody was the recipient of the Idaho State Bar Professionalism Award for her district.

In her role as Justice on Idaho’s highest court of last resort, Justice Brody has authored nearly 150 majority opinions in her six years as an Idaho Supreme Court Justice.  She recently sat for a conversation with me and shared her insights about the law, appellate practice, the role of the courts, and what she hopes her own legacy might be someday as an Idaho Supreme Court Justice.

If you could give three pieces of advice to someone who was preparing for their first oral argument on appeal, what would those be?

The first piece of advice is to make sure the advocate understands what an appeal is.  An appeal is all about legal error and an appellant has to be able to identify what the error is.  The second thing they have to be able to identify is the lens through which the appellate court actually looks at and reviews that error – this is the standard of review on appeal.  In connection with understanding and applying the standard of review, a litigant also has to ask, “What am I asking the appellate court to do about the error, and can the court do something about this error?”  If you start with these initial considerations, you are off to a great start.

Another thing I would advise attorneys to do, especially if they have never done an appeal before, is to watch other oral arguments – particularly the State Appellate Public Defenders and the Deputies Attorney General who appear frequently before the appellate courts.  They really understand what appellate advocacy is and have a rhythm with the court.  I think their arguments are very well done and would help any attorney navigate an appellate argument.

Finally, I would say that you can’t overprepare.  Really understanding your record, especially if you didn’t handle the trial proceedings in the first instance, you need to be intimately familiar with what happened.  On appeal, we are picking up the cases much like we are picking up a banker’s box never having seen its contents before.  As a Justice, I know that I don’t know the case like the attorneys do because I have argued as a practitioner and as a Justice I can’t know the record like the attorneys do.  Sometimes we wonder or have questions about what happened or why something happened.  I love it when an attorney can stand up and say, “I’ll tell you why it happened.  I’ll tell you why the judge did such-and-such,” and can really give a practical viewpoint to the record and explain why things happened the way that they did.

Related to that, what are some common mistakes that appellate attorneys make?

Approaching an appellate argument like you would a jury trial or like you would arguing in the first instance with a trial judge.  This is especially true with issues like expert witness testimony or other evidentiary decisions.  So many evidentiary issues at trial are discretionary calls for the trial court.  Our lens, when the Supreme Court looks at the issue, is very focused.  We are not going to jump in and change an evidentiary ruling very often.  If you are going to argue that a trial ruling is an abuse of discretion, you really need to ask yourself, “Under the Lunneborg[i] factors, where did the trial court go wrong?”  If it was the legal analysis prong, you need to start there.  That is where most successful abuse of discretion arguments are going to rest.  That is where you should spend your time.

Sometimes tone is an issue, too.  At times, great trial attorneys will come in and approach our bench like a trial.  It’s not the same thing at all in terms of substance or even style.

What about advice for trial judges?

I would pass along a piece of advice that Justice Stegner gave me at one point.  You can’t worry about being wrong.  Sometimes it is easy as a trial judge to think of an appeal as a scorecard or report card on your work, and it really isn’t.  There are a lot of really sticky legal issues that quite frankly could reasonably be decided either way – or in any number of ways.  At the end of the day, the judge has to make the call.

The beauty of the appellate system is there are five of us.  I think the constitution envisions that five heads are going to do a better job parsing a decision for a system, rather than just one. But those appellate decisions aren’t report cards.

What is your view of the importance of unanimity in appellate decisions, as well as the role of concurring and dissenting opinions?

I think the most powerful tool that any appellate jurist has is the unpublished dissent.  What I am talking about are those cases where someone will pen a dissent and will actually flip the entire decision.  The public never sees it.  Often with these decisions, the justice can explain in a few paragraphs what is wrong with the majority opinion and why it is that it shouldn’t stand.  There is enormous value in that tool.

As far as the value of unanimity, it brings a level of certainty for the bench and the bar.  It hopefully settles an issue for the cases to come.  Most of our decisions are unanimous.  Well over 90% of our decisions.  We are not the Supreme Court of the United States; we take up a lot of different issues than the Supreme Court of the United States and I think our function is much different.  We have an error-correcting component to our work that the Supreme Court of the United States really doesn’t have.  Outside of the federal statutory realm, they don’t fix errors.  They pronounce constitutional judgments.  You can’t bounce around from a legal perspective – you need steady, even-handed decisions.

There is also value to concurring opinions.  They can clarify points of law, add nuance, or give another perspective that can be valuable.  Dissenting opinions and partial concurrences can sometimes lay the groundwork for future opinions or additional arguments – especially where the arguments didn’t get made within the present case.  Because we have kept pretty tightly to the party-presentation principle, these opinions may keep the door open to another path.

On the issue of stare decisis, how important is consistency to Idaho appellate decisions?

When it comes to state law, especially as we are the keepers of the common law, it is important to keep the law predictable, steady, and knowable.  At the same time, there is a tension in making sure that you decide the issues correctly.  This tension also presents itself in decisions such as whether to overturn precedent.  Keeping the law predictable can sometimes be at odds with our party-presentation principle.  Our court, particularly in the last six years, has sounded a drum beat that we will not take up new issues or arguments that were not presented to the trial court.  At the same time, sometimes that doctrine gets to be challenging.  We want to get the law right.

Is it a frustrating experience as an appellate jurist to see what you think is the best or a better argument and no one seems to be making it?

It can be, although I don’t know that “frustrating” is the right word.  We walk a delicate line between staying true to the issues that the parties have brought to us but at the same time making sure that we are deciding the law in the best way possible.  As a practitioner, I can think of a footnote that appeared in a case and feeling that it wasn’t right.  I thought the Court took up an issue and decided it wrong when nobody invited them to weigh in on it.  As a Justice, that footnote weighs on me.  That experience factors into my decision making and is one of the reasons why you won’t find footnotes in my opinions.

There seems to be a trend with the current composition of the Idaho Supreme Court to provide more of an explanation of the principles behind its decisions.  Is that a deliberate plan or focus of this Supreme Court?

Speaking for myself, it is important for any legal decision to walk through all of the steps that any lawyer would need to walk through when analyzing a legal issue.  We have used this phrase in a recent opinion: “You have to show your work.”  Just like a math problem.  Contrary to what some might think, there really is a methodology and logic behind the rule of law.

Dean Don Burnett from the University of Idaho College of Law teaches courses to journalists and teachers about how to read legal opinions, as well as how to understand what’s going on in a courtroom.  He tells people to pretend they have a rule-of-law magnet in their hand that attracts statements of the rule of law – if you put that magnet down on the article or writing, what would be attracted to it and what do those statements show about the legal issues?  Is there any rule of law that is being explained or is it just someone expressing outrage at the result without any discussion of what the issue was, what the rule of law was, and how the judge analyzed the facts as they relate to that rule of law?

What Dean Burnett is telling those teachers and journalists is that there is a process.  I agree with Dean Burnett that there is a process; that’s what we went to law school to learn.  Our opinions should reflect that process.  That being said, sometimes an opinion can go too far and show too much work to reach the result.  It’s all about balance.  It’s important to explain to people why.

My freshman sociology professor in college gave us a bumper sticker that said, “Why is that?”  I know that, for myself, I try to answer that question in every opinion that I write.  I am quite sure that the opinion is going to be unpalatable for at least half of the parties, and maybe all of the parties.  Knowing that at least one side of the legal dispute will likely be disappointed in the outcome, these opinions need to answer the question of why we reached a particular decision for both that case and for future cases.

What would you hope to be the legacy that you leave behind as an Idaho Supreme Court Justice and the qualities that you would hope to be known for?

I hope I am a Justice who follows the law, wherever that takes us.  I hope I am a Justice that people recognize as being willing to set aside personal views or preferences, and who makes a decision that is in accord with the law.  When I say, “the law,” I mean statutes and the constitution.  I have a very definite viewpoint about the role of the courts, and I believe strongly in the separation of powers.  Our system works best when every branch of government stays in its lane of travel.

That requires respecting legislative prerogatives to legislate and make policy decisions.  For me, it means to read a statute plainly, with its ordinary meaning, as an average person would.  It’s not about what I think.  It’s about what the law says and what the law is.  I hope that people recognize, over time and through my work, my writing, and my decision making, that this is my philosophy.

Note: Ms. Tompkins wishes to give her sincere thanks to Tresha Griffiths, Judicial Assistant to Justice Brody, for her patience and invaluable assistance in making this article possible.

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[i] Lunneborg v. My Fun Life, 163 Idaho 856 (2018).

Jonah J. Horwitz

Most of the time, the lawyers who specialize in representing habeas petitioners in federal court are treated as curiosities by the rest of the criminal defense bar.  That is for good reason, as habeas law is complex, convoluted, and usually irrelevant to the day-to-day practice of anyone outside the tribe.  Sometimes, however, developments in federal habeas law significantly impact the long-term consequences of decisions made by defense attorneys years earlier.  Such a development took place in 2022, when the United States Supreme Court handed down its decision in Shinn v. Ramirez.

My goal here is to outline the major implications of Ramirez for Idaho defense lawyers who handle cases in state court, either at the trial, appellate, or post-conviction levels.  In particular, I will focus on the broad lessons of Ramirez in terms of what they suggest about how a state court lawyer can best situate her client for prevailing in federal habeas, should the case get that far.[i]  By way of caveat, the article will not speak to the separate question of what strategies lead to the best outcomes in state court proceedings themselves.  That is something for a skilled and experienced state court practitioner to comment on – not federal habeas lawyers, whose focus is always on the remedy of last resort.

The Pre-Ramirez Safety Net

First, some background is necessary, though I will try to avoid driving away the reader with too much habeas[ii] arcana.  In 1991, the Supreme Court decided Coleman v. Thompson.  Coleman addressed the question of whether ineffective assistance of counsel at the state post-conviction stage could serve as an excuse for a federal habeas court to reach the merits of a constitutional claim.  That is, when a state post-conviction lawyer should have asserted a particular issue and failed to do so without any good reason, is her mistake a basis for the inmate to have the claim heard in federal court?  Coleman’s answer was no.[iii]

The Supreme Court radically altered course in 2012, when it changed the answer to yes.  In Martinez v. Ryan, the Court held that ineffective assistance of post-conviction counsel provided cause for federal courts to reach one important set of claims.  Those claims were limited to ineffective assistance of trial counsel.[iv]  The rule from Martinez applied to most state systems in which trial-ineffectiveness is typically asserted in post-conviction proceedings, rather than on direct appeal.[v]  That made it the rule in Idaho.[vi]

After Martinez, in states like Idaho, a safety net existed for federal constitutional claims that had been wrongly left out of state court litigation.  For the many claims that could be framed in terms of ineffective assistance of trial counsel, the doors to the federal courthouse were now open.  It became a significant exception for a couple of reasons.  One is that, for any claim that has been assessed on the merits in state court, federal habeas review is hamstrung by an extremely demanding standard.[vii] But Martinez claims were by definition not considered on the merits in state courts, as they were missed by initial post-conviction counsel, so they received de novo review in federal habeas.[viii]  The second key aspect of Martinez for present purposes was that it allowed, at least in the Ninth Circuit, substantial expansion of the record in federal court beyond what was presented in state proceedings.[ix]

The Net Removed

That brings us to Ramirez, which appears to have closed much of the window opened by Martinez.  The upshot of Ramirez is that, with limited exceptions most likely applicable in few cases, petitioners whose post-conviction attorneys overlooked claims are now prevented from expanding the record in federal court.[x]  That is a serious problem for the average ineffectiveness claim.  If the claim was missed by post-conviction counsel, the facts supporting the claim were probably left out of the state court record as well.  And if habeas counsel cannot bring the facts out in federal court, they will be off the table altogether.

It is a particularly concerning predicament when it comes to establishing prejudice.  When a trial attorney is faulted for an omission, precedent requires a showing of a reasonable probability of a different result had the action been taken.[xi]  Evidence of how things would have turned out differently is almost invariably outside of the trial record.  And if it is outside the initial post-conviction record as well, it is likely barred from federal review, and the claim will meet a swift death in habeas.[xii]

Prepping for Habeas Post-Ramirez

It is time, then, to turn to how state counsel should react to Ramirez.  The upshot is that no one is entitled to assume federal court will continue to serve as a reliable backstop.  If counsel fail to spot an issue while the case is progressing through the state court system, it might never see the light of day.  That reality gives rise to a number of imperatives for state counsel.

First, preserve any potentially meritorious constitutional claim at every phase of the state court proceedings.  What is more, keep in mind that to preserve these issues for habeas, they must not only be raised as constitutional arguments but as federal constitutional arguments.  Imagine, for example, that you are a trial attorney and you are alleging a violation of Idaho’s rule against hearsay.  Give serious thought to whether it might make sense to assert that your client’s rights under the Sixth Amendment’s Confrontation Clause were violated along with his rights under the hearsay rule.  There is, after all, obvious overlap between hearsay principles and Confrontation Clause law.[xiii]

Or take a situation in which the judge is refusing to allow you to put in evidence you feel is pivotal to your case.  You will almost certainly have points to make with reference to state evidentiary rules.  How about simultaneously invoking your client’s due process right to present a defense?[xiv]  The same right is a candidate for other situations as well.  Even as routine a matter as the denial of a continuance could, under the right circumstances, violate the right to present a defense.

Similar approaches are called for at the appellate level.  If you are, say, an appellate attorney who is arguing to the Idaho Supreme Court that the evidence was insufficient to convict your client, the claim can easily be framed so that it encompasses, in addition to state law, the related federal due process right against conviction based on inadequate evidence.  It is presumably an identical argument, as the tests are the same.[xv]

Just remember that best practice is to cite both the constitutional provision and a case on point from the federal courts, to ensure you are adequately exhausting the issue.[xvi]  In an ideal world, you would delve into the federal constitutional claim in some detail.  Assuming you don’t have the time for that degree of thoroughness, at least include the federal citations.  Don’t forget that complete exhaustion means presentation to the Idaho Supreme Court in a petition for review, even if the Court of Appeals has taken up the claim.[xvii]

State Court Claims Are Essential

Ramirez has notable ramifications for attorneys who handle post-conviction matters in state court, as well.  To begin with, it is more essential than ever to diligently pursue any colorable claim of ineffective assistance of counsel.  In the Martinez era, there was considerable leeway for such claims in a federal court in the Ninth Circuit.  No more.  If your client has a potential ineffectiveness claim, it must be raised in state court.  In searching for ineffectiveness claims, keep in mind that post-conviction attorneys are in many ways in the same position as trial counsel: they have an obligation to investigate matters beyond the record to see if their predecessors should have done anything differently.[xviii]

There is a tendency among some post-conviction practitioners to view their work through appellate lenses because a record already exists when they enter the stage.  The tendency is perhaps more prevalent in places, like Idaho, where many attorneys do the occasional post-conviction case without specializing in the area.  But the tendency is mistaken.  A post-conviction attorney has an opportunity to find evidence that escaped the original lawyer’s attention.  Now that traction in federal court will be more difficult to get, a robust post-conviction investigation is key.

Drafting Ineffectiveness Claims

A special word on drafting ineffectiveness claims is in order, too.  Some scenarios obviously present ineffectiveness concerns.  An objectionable statement on the record at trial that draws no objection is an easy call.  But one of the upshots of Ramirez is a renewed need to think imaginatively and expansively about what exactly qualifies as ineffectiveness.  The Fourth Amendment is a good example.  Substantive Fourth Amendment issues are almost always beyond the reach of federal habeas proceedings because the exclusionary rule generally does not apply there.[xix]  Nevertheless, an inmate may still get habeas relief in federal court on a Sixth Amendment claim that trial counsel was ineffective for failing to bring a suppression motion.[xx]  This is yet another reason to cast a wide net in framing issues with reference to trial-counsel ineffectiveness.

Post-conviction attorneys ought not to forget another category of ineffectiveness claims: those pertaining to direct-appeal-counsel’s performance.  Appellate ineffectiveness remains a legitimate basis for a federal habeas court to reach a claim that would otherwise be procedurally barred.  For the avenue to work, the appellate-ineffectiveness claim itself has to be exhausted in state court.[xxi]  As the road to federal habeas review becomes even more challenging, the paths still standing are especially deserving of attention, and appellate-ineffectiveness is one of them.  The mindset for crafting such claims, unlike when they are directed at trial counsel, is that of an appellate attorney.  That is to say, when you are pursuing an appellate-ineffectiveness claim, you are almost always limited to issues presented by the existing trial record.[xxii]

Your task is to review the trial record and determine what challenges could have been articulated on appeal that were not, much as a direct-appeal attorney herself would do.  Thus, taking into account your responsibility of formulating ineffectiveness claims geared toward both trial and appellate counsel, the best way of conceiving your role is that you yourself are wearing both a trial and appellate hat.  You are searching for fruitful facts to investigate, as a trial lawyer would, but also scouring the established record for issues it supports, as an appellate lawyer would.

Challenge Restrictions on Post-conviction Review

Finally, post-conviction counsel have renewed reason to zealously litigate unreasonable procedural limitations being placed on them by the state courts.  Is your post-conviction judge refusing you resources you need to litigate the case, by preventing you from hiring experts or taking other essential steps?  Is she rejecting well-founded motions for continuances?  Is she imposing unfair page limitations?  Is she denying an evidentiary hearing even though one is called for by state law?  Is she imposing unwarranted limitations on the scope of an evidentiary hearing?  Is she declining to order the State to provide you documentary discovery or authorize depositions despite your entitlement to these fact-finding tools?

Your client will be well-served by you making a clear record of any such restraints and your opposition to them.  In federal court, even after Ramirez, there is still good law that unjustified procedural constraints in state post-conviction open the way to more meaningful federal habeas review.[xxiii]

The bottom line is that Ramirez calls upon state-court practitioners to be careful, comprehensive, and creative in litigating claims with an eye to preserving them for potential federal habeas review.  Although it has gotten more difficult to prevail in federal habeas, you owe it to your clients to give them as much of a chance as you can.

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[i] The suggestions made here are designed for non-capital cases.  Death-penalty matters are unique in many respects and fall outside the scope of the article.  The views expressed here are solely the author’s.

[ii] For convenience, I will use the term “habeas” as shorthand to refer to federal judicial review of state-court judgments.

[iii] 501 U.S. 722, 753 (1991).

[iv] Martinez v. Ryan, 566 U.S. 1, 9 (2012).

[v] Id. at 11.

[vi] See, e.g., Johnson v. State, 162 Idaho 213, 228, 395 P.3d 1246, 1261 (2017) (recognizing that “Martinez applies in Idaho”).

[vii] See, e.g., Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” (internal quotation marks omitted)). 

[viii] See, e.g., Rodney v. Filson, 916 F.3d 1254, 1262 (9th Cir. 2019).

[ix] See Dickens v. Ryan, 740 F.3d 1302, 1319–21 (2014).  

[x] See 142 S. Ct. 1718, 1735 (2022).

[xi] Strickland v. Washington, 466 U.S. 668, 695 (1984).

[xii] There are exceptions to all of the general habeas rules mentioned here, which are too involved to get into in such a short space.  The article s instead written to capture with a broad brush the general principles at play in habeas practice that apply to the lion’s share of cases.

[xiii] See, e.g., Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”). 

[xiv] See Chambers v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.”).   

[xv] Compare Jackson v. Virginia, 443 U.S. 307, 318 (1979) (articulating the federal constitutional test as “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”), with State v. Schiermeier, 165 Idaho 447, 451, 447 P.3d 895, 899 (2019) (reiterating the same standard for state-law challenges to the sufficiency of the evidence on appeal).

[xvi] See, e.g., Galvan v. Alaska Dep’t of Corrs., 397 F.3d 1198, 1202–03 (9th Cir. 2005) (finding a claim unexhausted where the petitioner cited only state authorities on appeal).

[xvii] See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

[xviii] See, e.g., Trevino v. Davis, 829 F.3d 328, 347 (5th Cir. 2016) (holding post-conviction counsel to the same standards applicable to trial attorneys).

[xix] Stone v. Powell, 428 U.S. 465, 494 (1976).

[xx] See, e.g., Grumbley v. Burt, 591 F. App’x 488, 499–501 (6th Cir. 2015).

[xxi] See Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

[xxii] See, e.g., Dumas v. Long, No. 5:14-cv-328, 2015 WL 4720583, at *7 n.12 (C.D. Cal. June 5, 2015) (“[T]o the extent petitioner’s ineffective assistance of trial counsel claims rely on evidence not in the trial record . . . , his appellate counsel cannot be faulted for failing to raise the claims as appellate counsel was limited to what was in the trial record.”), adopted by, 2015 WL 4722216 (C.D. Cal. Aug. 6, 2015).

[xxiii] See, e.g., Panetti v. Quarterman, 551 U.S. 930, 954 (2007) (reiterating that federal merits review of a habeas claim is conducted de novo when “the factfinding procedures upon which the [state] court relied were not adequate for reaching reasonably correct results or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth” (internal quotation marks omitted)).