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).