After talking and writing about judicial selection for years, I have heard more than once that the Judicial Nominating Commission appears to consider judicial experience a major plus when selecting candidates for Oklahoma’s appellate courts. A look at the current makeup of the Oklahoma Supreme Court appears to confirm the idea. All eight sitting Supreme Court justices were trial judges in state or tribal court prior to joining the state’s highest court.

There’s nothing wrong, of course, with having experience as a trial judge prior to joining an appellate court. But it should be kept in mind that the jobs are very different. This reality appears to be missed even by the attorney members of the JNC. With many of the applicants for the current vacancy being sitting judges, it will be important for members of the JNC not to think of a Supreme Court justice as a “super” judge. 

Perhaps the best way to explain the differences between trial judges and appellate judges is to think about the timeline of a case. When the case is filed, it is assigned to a trial judge. Until trial, the trial judge will rule on various kinds of motions with the litigants able to put forth all kinds of arguments and admissible evidence. A trial judge’s demeanor is especially important, because their courtrooms are sometimes full and chaos can ensue if the judge doesn’t maintain the appropriate amount of order. 

At trial, the jury is the trier of fact with the trial judge ruling on what evidence is admissible and instructing the jury on the law. In rare circumstances, the judge may render judgment before the jury deliberates or disregard the jury’s decision if, in the judge’s view, no reasonable juror could reach a certain outcome based on the evidence presented. This gives trial judges a front-row seat to the action. Like jurors, they are able to see witnesses firsthand and make judgments as to the credibility of testimony. 

Perhaps most importantly for the current discussion, trial judges in Oklahoma rarely write lengthy opinions or orders explaining their decisions. They frequently rule from the bench and rely on the litigants to craft a mutually agreeable order in line with the judge’s ruling. When disputes inevitably arise, the judge must settle the dispute—often clarifying the earlier ruling. This raises the question of whether trial judges should rely less on the litigants to draft orders.   

Compare this to the role of the appellate judge when the case is on appeal. Appellate courts are generally limited to the “cold record,” meaning they get transcripts and documents from the trial court but are detached from the live proceedings in the trial court. They also do not hear new evidence, but are limited to this record. Because of this, appellate courts are not well suited to deciding evidentiary matters, and usually defer to the trial court on findings of fact. Their review is usually limited to whether the trial court correctly applied the law. 

I believe the most important aspect of an appellate judge—especially one on a jurisdiction’s highest court—is the ability to analyze the law correctly and communicate it clearly through a written opinion. Of course, both trial judges and appellate judges need to analyze the law properly. But contrary to the role of a trial judge described above, an appellate judge is expected to write opinions that not only explain the law for the parties but give guidance to future litigants. This provides a certain amount of certainty in the law. 

Because trial judges rarely write legal opinions, their judicial experience doesn’t necessarily translate to success on an appellate court—even if they are a well-respected trial judge. A lawyer, however, who has spent years writing appellate briefs may very well be in a better position to interpret, analyze, and communicate the law better than a sitting trial judge. On the other hand, some judges write law review articles in their spare time. This may provide great evidence of writing skill and legal analysis that might be otherwise missing from their time on the bench.

Former Oklahoma Supreme Court Justice Patrick Wyrick was a great appellate judge, and he had never been a judge before. He had been the Solicitor General, arguing cases before various courts including the United States Supreme Court and the Oklahoma Supreme Court. I believe it was this practice that prepared him to write the opinions that many of us appreciated.

We can think about this by comparing judging to actual law practice. There are many litigators that do trial work and appellate work, but they are separate skills. In many cases, litigators that are especially good at one aren’t as great as those who specialize in the other. While it is certainly possible, it’s unlikely that a great prosecutor with 100 trials under his belt is also a great appellate brief writer. And that’s okay. In the same way, trial judges and appellate judges do different things, and it’s okay to not automatically prefer trial judges for the role of appellate judge.

Nothing written above should be construed to suggest that all trial judges make bad appellate judges. There’s no one path a lawyer must take in order to make it to the Oklahoma Supreme Court—or any other court, for that matter. But it would be a mistake to assume a sitting judge is necessarily more qualified than anyone else. The JNC should take care to consider the special role of appellate judges and base their questions and votes on who best meets that criteria.