The craft of problem-solving

Issue June 2010 By Christina P. O'Neill

Associate Justice Ralph D. Gants' first year on the Supreme Judicial Court hasn't left him much free time. He likens it to a different kind of footrace than his 11 years of service as a Superior Court judge. "The Superior Court is more of a fast jog with occasional sprints. This job is much more of a sprint-jog cycle," he says.

Gants and his six fellow justices, adhering to a 2010-11 schedule set up in advance, sprint to prepare for sitting week, which occurs at the beginning of every month, and again during the two- to three-week period in which they write their cases, and then again as they prepare edits of each other's cases before a midweek consultation. Lawyers Journal caught him in a recent jogging week.

Some other stats from the bench: SJC justices hear roughly 20 cases per sitting, each case with an appellant's brief, and appellee's brief, a reply brief, one or more decisions from lower courts, records to be reviewed, and other cases deemed important from which the appellants cite. This runs to about 150 pages of material, on average, for each case before the justices sit - 3,000 pages per sitting, with work beginning on the Thursday before the Monday sitting.

"It takes a bite out of that weekend, as you may expect," says Gants, who is married and has two children. "We don't schedule a great deal of entertainment at home that weekend, unless you think it's entertaining to watch me read."

Gants, appointed to the state's highest court by Gov. Deval Patrick in January 2009, is clear-spoken, with a self-effacing sense of humor. He puts his sentences together with "measure-twice, cut-once" deliberateness. It's hard to imagine him majoring in criminology and being a trial judge, which he was, but not as difficult to imagine him as a teacher, which he was until taking the SJC post. He keeps a hand in teaching during stints as a guest lecturer at Northeastern Law School, where his wife is a law professor.

"Justice Gants joins a hard-working, collegial appellate court," says Chief Justice Margaret H. Marshall in an e-mail. "[H]is contributions fit well with the other members of the Court in that regard. His breadth of experience before joining the Court will undoubtedly continue to be particularly helpful. Each time a new justice joins an appellate court such as the Supreme Judicial Court, where the justices sit en banc for almost all cases, the presence of a new justice inevitably has an impact. The presence of Justice Gants is no different in that regard. He is a valued member of the Court."

Writing for the jury

Gants does not discuss particular cases in an interview. However, he freely discusses the deliberative processes of the SJC and what life is like on the bench. The collaborative process of writing decisions on the SJC, in which the justices have all read the same case, differs widely from the process in Superior Court, where justices write solo. But in each instance, justices must keep in mind the audience for whom they are writing.

"The craftsmanship at the [SJC] is problem-solving of a sort. Every issue that comes to us is a legal problem that needs to be resolved," he says. "But the products that we generate are legal decisions and there is a great deal of craft involved in seeking to write them, both to address the legal issue that is before us, to attempt to provide language that is going to be clear enough that it can be followed, sensible enough that it will work in practice, and that will avoid setting forth careless language that will pose a problem that we may not anticipate, or need to address in decisions."

In Superior Court, he recalls, jurors often telegraph their confusion by their facial expressions when language in a legal decision is hard to follow. He says his 11 years on the Superior Court bench gave him a sense as to how legal issues work out in practice - an advantage over someone who has not dealt with SJC decisions over that span of time. "And having done that, I think, makes me, I hope, a little more sensitive to making sure that the law that we create not only is fair and sound, but also sensible," and clear enough to provide adequate guidance for both lawyers and juries.

The work of the SJC

The SJC selects a small share of the cases heard by the Appeals Court. The only exception: First-degree murder cases, all of which are heard by the SJC. Five justices sit on each of those, to spare the single justice of the month from the extra work to prepare for the case.

Single justice sessions are held each week throughout the year for certain motions pertaining to cases on trial or on appeal, bail reviews, bar discipline proceedings, petitions for admission to the bar, and a variety of other proceedings, including emergency matters. In the aggregate, the single justices decide approximately 600 cases annually.

The SJC gets 16 to 19 requests for cases labeled "further appellate review" each month. These are cases that have already been decided by the Appeals Court. Gants takes them home eight or 10 at a time, over the course of a month, and the Court takes about five percent of them.

Another 10 requests are for direct appellate review, cases decided by a trial court, but which come directly to the SJC rather than the Appeals Court. The SJC takes a higher percentage of those cases. Then, the SJC takes three to six cases from appellate courts that its staff recommends.

Some cases are chosen because they raise legal issues substantive enough that they should be decided by the highest court. Others are chosen to resolve differences in rulings by lower courts. Yet others are taken when the SJC decides to take a second look at some of its prior precedents.

Preparation for oral arguments is comprehensive, he observes. "If any attorneys actually understood how well prepared we were, they would be extraordinarily heartened," he says. "Perhaps they don't feel that way when there are four questions fired at them before they've had a chance to finish their first sentence."

Words of advice

So, what words of advice would he give appellate attorneys?

"I would encourage them to focus on one or two issues, with regard to challenging decisions [in lower courts], I would focus on one or two reasons as to why the decision was ultimately unfair," he says.

In Gants' Superior Court days, he would read each day's motions the night before in order to make the best use of the oral argument. Consulting with one's judicial peers was infrequent, as each judge was busy with his or her own docket. While he did not expect to rule from the bench except in cases where the answer was uncomplicated, he did expect to prepare a preliminary decision, as did most of his peers.

However, at the SJC, the process is collaborative. At the end of each day of sitting week, the justices meet in semble, and each provides his or her preliminary view of how they think a particular case will evolve. The chief justice then chooses the designated author of the decision. Preparation for oral argument includes not only a familiarity with the legal issues, but also the need to come to a tentative view of what the decision should be.

"That requires not only a degree of focus, but also the additional effort that's involved in moving from understanding the issues to actually deciding them."

Sometimes the majority view changes if the author comes up with a different approach and the other justices who originally disagreed come to conclude that the author is right. Preliminary views have consequence not only in the selection of the decision's author, but what views of the matter perhaps should be incorporated and addressed in the decision. The semble notes serve as an indicator of what legal points to address, whether or not an individual justice agrees with them.

"Then, with the blessing of having seven very bright, thoughtful people presenting, is that you do get very valuable points of view," he says.

The SJC justices, virtually all of whom Gants came to know through their law school teaching activity, "get along very well," - a view that may or may not be shared by all appellate courts, he adds. "We respectfully listen to each other's views [and] disagree amicably. I can write a dissent and go for a walk at lunchtime with that same justice, and then join with working with them on another decision the next day."

The work methods of the justices differ greatly - some do line-by-line edits, others hold onto the big picture. "Each of us have been spared from error by our colleagues," he says.

Beyond the Bench

A key project for Gants is the Access to Justice Commission (see May 2010 Lawyers Journal). Marshall tapped him to co-chair the commission with attorney David W. Rosenberg. "The first thing I said was that I am happy to do this work, but I want to make sure that at the end of my tenure, there are accomplishments we can say we were an important part of," he says.

The justices share numerous administrative responsibilities in addition to the Court's adjudicative work, Marshall says in an e-mail.

"As a new member of the Supreme Judicial Court, Justice Gants expressed great interest in the work contemplated for the newly-constituted Access to Justice Commission, which we decided should be co-chaired by a member of the Court. The commission is off to a running start. I am confident that under the leadership of Justice Gants and his co-chair, David Rosenberg, the commission will make significant contributions to the important work of increasing the ability of all Massachusetts residents to have access to our courts."

Gants has taught at three of the region's law schools, and says he misses teaching. "It was an adjustment I made," he says. Guest-lecture stints at his wife's law school classes at Northeastern Law School keep him connected with students.

Teaching allows a legal perspective not always obtained from judges, he says. "If you are teaching well, you are discussing the evolution of principles which may have led to the most recent holding and understanding how the U.S. Supreme Court got to that ultimate resolution. … What happened before Miranda, for instance, and how we managed to get to Miranda.  And what were the problems … that led to the court order that decided Miranda, as opposed to just being able to read Miranda and know what it says. … When you don't teach, you don't do that."

Miranda, a bold decision at its inception, has grown in importance over time, he notes. "It's now at the heart of our constitution. Before, we thought it was simply a prophylactic court-given rule; now, we believe it's of constitutional stature. But that wasn't obvious in 1967. … If you don't know that history or see the problems that generated that outcome, I don't know that you have an understanding of what Miranda means."

Some things remain the same

Now that he is a justice on the state's highest court, which, founded in 1692, is believed to be the oldest appellate court in continuous existence in the Western hemisphere, do his friends outside the SJC treat him differently?

"My answer is two words," he deadpans. "Sadly, no."