Bench & Bar January/February 2025

Q&A WITH CHIEF JUSTICE

With respect to appellate advocacy, what are common mistakes that practitioners make? Conversely, what sets the best appellate advocates apart from the rest? From my perspective, the best appellate advocates can simplify a case to its core issues and communicate those issues to the court in a way that is easily digestible. The most effective attorneys I’ve seen argue before the Court of Appeals and Supreme Court have offered to the court a clear, simple path to a solution in their case. Along with that, I think the best appellate advocates also have an appreciation for the practical implications of the court’s holding in their case and can consider how the outcome of a given legal issue will impact not only their client, but also the practice of law and the public in general. And finally, the best appellate advocates are extremely well-prepared. They have an in-depth understanding of the facts of the case, the legal arguments made or not made in the trial court, and where in the record their factual assertions and arguments are supported. That level of preparation often results in a simple, clean argument that can be presented to the court. As to common mistakes of appellate advo cates, I think many attorneys fall into the trap of overcomplicating their arguments. While many of the case that make their way to the appellate courts, and especially the Supreme Court, are complex and require a high-level understanding of a given legal issue, the court will most often look for the solution that makes the most common sense. Having an in-depth understanding of the legal theories supporting an argument is important, but oral arguments and appel late briefs should not take the place of law review articles. Second, I think appellate attorneys are sometimes too quick to dis miss arguments that they do not perceive to be clear winners. Occasionally, the court will adopt an argument that is not the main subject of the parties’ briefs. So attorneys should be prepared to consider and discuss all arguments that are feasible in their case, not just the ones they would discuss in the first or second section of their appellate brief.

The bench and bar are multiple years into the electronic filing protocol. Has this been a labor-saving innovation, for example are headcounts down in clerks’ offices around the commonwealth? Do you envision a day when paper files are eliminated altogether? The Supreme Court first mandated electronic filing for litigants in certain case types in July of 2022. As of January of 2025, electronic filing is mandatory in the majority of civil case types. In March of 2024, the Court also required all circuit and district judges to electroni cally enter orders in all case types in which electronic filing is mandatory for litigants. Just this past year, the Administrative Office of the Courts contracted for new case management and electronic filing systems to be used in our trial courts. Those new systems will be rolled out to each county over the coming years. I would not say that electronic filing has, so far, reduced the number of employees needed in clerks’ and judges’ offices. But electronic filing is a big change from the way our judges, clerks, and litigants were operating just a few years ago, and we’re still figuring out how to implement this new process in a way that is efficient and reduces the workload for everyone. I expect efficiency in court operations to increase dramatically as we become more proficient in electronic filing over time. The transition to electronic filing is a significant effort with a long-term goal in mind. The Court anticipates moving trial courts to a completely electronic record—and therefore eliminating the need for paper files altogether—at some point in the near future. How quickly that moment arrives will largely depend on the rollout of the new case management

and electronic filing systems, which we expect to streamline the process for electronic filing for judges, clerks, and litigants.

On the farm in Clark County. March 2020. Good way to get out of the house during Covid!

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You’re still relatively young at 66 at the end of your judicial career. Can you share what your plans might be? Still more to be revealed. I have some writing proj ects in mind and have four grandchildren to visit. And there will be opportunities to look for Native American artifacts on the farm.

Chief Justice VanMeter showing Lou Anna Red Corn his father’s and his artifact collection.

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8 january/february 2025