Advice from the Nebraska Supreme Court

I will be the first to tell you, spring semester was intense. Especially during the last month prior to finals. However, in the middle of everything - way back in the first week of April -  I was lucky to have one of the coolest experiences of my young law school career. The Nebraska Supreme Court held a session of oral arguments in our Gross Appellate Courtroom at Creighton University School of Law. Granted, as a 1L my attendance was required by our Legal Research & Writing professors, it was something I was certainly glad to have been a part of.

Luckily, the court allowed us to have pen and paper available in the courtroom and I was going to write this whole long post about every case that was argued before I decided...you don't want to hear all that.

But, what I do bring to you...is the advice of the Justices that I gathered from the after argument Q&A session.

The Nebraska Supreme Court

The Court is made up of seven justices. However, due to the death of one justice - and the unexpected resignation of another - the Court only had five sitting justices, a district court judge and judge from the Court of Appeals.

The Court was composed of the following justices during the arguments I saw:

Chief Justice Michael Heavican

Justice Stephanie Stacy

Justice Lindsey Miller-Lerman

Justice William Cassel

Justice Jeffrey Funke

They were joined by district court judge Stefanie Martinez, from the 2nd Judicial District and judge Francie Riedmann from the Court of Appeals, 3rd Judicial District.

Q&A Session

Questions were asked of the justices by the Creighton School of Law, Class of 2020. The questions, and their answers - to the best of my note taking ability - are here below.

Q: Is more weight given to the written briefs that are submitted, or to the oral argument?

A: Justice Miller-Lerman: "Everything.

A: Justice Cassel: "You can't have an oral argument bring new matters that aren't mentioned in the brief."
A: Justice Funke: "Briefs are important as they are always reviews, but oral argument expands on that."
A: Justice Stacy: "We do re-listen to arguments [arguments are recorded] to confirm our approach to the case."

Q: What are the next steps for the Court after oral argument?

A: Justice Cassel: "We talk about the case. The judge who will author the opinion, the author judge, is assigned by the court clerk and the writing imposes a discipline that is integral to the decision process. It requires careful thought."

A: Justice Funke: "I need to see the opinion written. I may or may not be on board."

Q: Does Nebraska exercise de novo review?

A: Justice Funke: "We do for juvenile cases, domestic cases and for abuse of discretion."

A: Justice Cassel: "Everyone on the court uses heading for standards of review and the standard is usually controlling."

Q: Is it a pet peeve when someone does not give a direct answer to a question?

A: Justice Miller-Lerman: "It is never a trivial question and the judge is confused."
A: Justice Cassel: "There was a lawyer yesterday where I asked, 'So the answer is yes?'"

A: Justice Stacy: "Just answer the question!"

Q: Do you have a preference in regards to the presentation?

A: Justice Stacy: "Sometimes lawyers tell too much, thinking we haven't read the brief. But, persuasion starts with high points. A roadmap helps for the queue of questions; what is most persuasive?"

A: Chief Justice Heavican: "It is important when arguing that you know it is your opportunity to discuss what is most important in your case."

Q: How do you prepare for oral arguments? If you had an extra hour in the day, what would you do with it?

A: Justice Miller-Lerman: " Go to bed earlier. Read briefs for strength and give the research to the law clerks."
A: Chief Justice Heavican: "Key cases that are cited will be reviewed."
A: Justice Cassel: "Read as much of the record as is appropriate."

A: Justice Funke: "I read the record, pleadings by attorneys and transcripts. Were the questions and affirmative defenses framed correctly. There are two types of law clerks: career clerks and term clerks. Career clerks stay with a particular judge for a long period of time while term clerks are usually fresh out of law school, they just passed the bar. For Nebraska, term clerks for the Supreme Court clerk for two years"

A: Justice Stacy: "Author judge prepares the bench brief to help the other justices be well informed."

Overall, it was a very interesting perspective to have. I encourage all of our readers to check your local court calendars - Supreme Court or Court of Appeals - and see when they hold oral arguments and check them out if you can! It is definitely an experience in and of itself that is completely different from being in trial courts or even in school competitions.

Hopefully, these answers help you see how the Justices on one state Supreme Court see their job.

Stay classy everyone!

~BlueJayLawGirl