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

Create-Your-Own Hypos

Sometimes, if you can't find a question to practice a topic that you are struggling with, the best thing to do is write your own questions.  I was having trouble with some torts topics so I created my own using my family as an example.

The Question

L and M were preparing for D’s birthday.  Because he “forgot” to text them back regarding what he wanted for his birthday gift, they decided to play a prank instead.  Being the crafty twins that they were, they put their heads together and tried to think of a joke for the record books.  Suddenly, they knew that they had settled on the perfect one.

L and M put a rose-haired tarantula in a box and wrapped it.  When they went home for fall break, they dropped the inconspicuous box (wrapped perfectly in lime green paper) off with their unsuspecting mother.  L and M requested that their mother bring D his birthday gift with her to Houston during her next visit.  She excitedly agreed and packed it in her carry-on.

The next day, Mom drove to the airport, still unaware of the contents of the lime green gift.  She dropped her luggage off at the Delta counter and then waited in the TSA pre-check line with her carry-on bag.  She sent her carry-on through the x-ray machine, and in their diligent search for shampoo and garlic spread, TSA did not detect the rose-haired tarantula.  M and L’s plan was working out perfectly.  Mom boarded the plane and placed her carry-on under the seat in front of her and followed all of the instructions from the flight crew.  She relaxed once the plane was in the air, and she pushed play on her playlist full of AC/DC and Queen.

Once Mom deplaned at the Houston-Hobby airport and retrieved her luggage from the carousel, she took an Uber to D’s apartment.  When she arrived at his door, she pulled L and M’s present out of her carry-on and knocked on the door.  D excitedly opened the door and greeted his mother, looking forward to opening the gift from his stupendous sisters.

D sat down on his couch and placed the exquisitely wrapped gift in his lap.  He read the card stating that it was from L and M.  He quickly ripped off the lime green wrapping paper revealing the box inside.  He smiled as he lifted the lid and then immediately paled.  In horror, he shoved the box off his lap.  The tarantula, in a panic, used its defense mechanism and shot one of its hairs towards D.  The hair embedded itself in D’s hand and he fainted onto the couch.  When he came-to, Mom had caught the spider in a jar and noticed D’s injury.  She promptly drove him to the hospital.

The doctors told D that his injury was infected, and he would have to miss a few days of his rotations because of the swelling in his hand.  D stayed in the hospital for three days until he was fully recovered, and then returned to rotations.  This time, he replied to his sisters’ texts in an angry fashion and told him that he was going to file claims against them.

1. What tort claims can D file against L and M?  Explain.
2. What tort claims can D file against Mom?  Explain.

The Challenge

Now that you've seen an example, I dare you to try this one or to write your own.  Bring on the back-firing sibling pranks.

Have a great laugh,