Working From Home: Appellate Collaboration in the Digital Age

By Justice Elizabeth A. Grimes and Erica Toews

As Woody Allen famously said, 80 percent of success is showing up. But what does it mean to show up for work in the digital age? Appellate justices spend most of our time in quiet solitude, reading briefs, studying record citations, doing research, drafting and editing opinions, ruling on petitions for rehearing and applications for writs, and analyzing the work of our colleagues. Our work requires collaboration, since at least two justices must concur in any opinion.

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Judicial attitudes toward collaboration have changed dramatically over time. The early United States Supreme Court initially followed the English tradition of announcing decisions without much formal conferencing of the justices in private session. Supreme Court Chief Justice John Marshall institutionalized the practice of conferencing among the justices in 1801. (Cohen, Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort (2014) 62 Am. J. Comp. L. 951, 988.) Conferencing did not catch on among the California intermediate Courts of Appeal until much later. Justice Raymond E. Peters, presiding justice of Division One of the First Appellate District, introduced the procedure of holding private personal conferences before oral argument in 1939. (Molinari, The Decisionmaking Conference of the California Court of Appeal (1969) 57 Cal. L. Rev. 606, 607.) Since then, the judicial conference has become standard protocol. With recent advances in technology, is a personal meeting still integral to the judicial conference?