Exploring Procedural ...

Exploring Procedural Justice | Judge Steve Leben

May 30, 2024 | by D. Todd Smith

Listen to the podcast here:

Judges represent not only their judicial office, but also the legitimacy of the judicial branch as a whole.  For many Americans, their only interaction with the legal system may come from a single trip to the courthouse. This makes it imperative for judges to leave participants in the system feeling that they have been treated fairly and respectfully. This procedural justice goes beyond just outcomes, focusing on the fairness of the processes used to make decisions. In this episode, Todd Smith and Jody Sanders talk with Judge Steve Leben, formerly of the Kansas Court of Appeals, about procedural justice and its role in shaping public perception of the court system. Judge Leben explains that procedural justice focuses on making the court process fair, understandable, and respectful for everyone involved. This episode serves as a valuable reservoir of insights for those interested in bolstering public trust and confidence in the integrity of the legal system.

Our guest, and we’re going to change his title around several times during this, but it’s Judge Steve Leben, formerly of the Kansas Court of Appeals and now a Douglas R. Stripp Distinguished Professor of Law at the University of Missouri, Kansas City. Thank you so much for being here.

I’m happy to join.

Some of our readers follow us on Twitter. They may be familiar with you already. For those that aren’t, tell us about yourself, your background, and your professional path.

I practiced law for several years before I became a judge. I started at the Stinson Law Firm in Kansas City. I was there for several years. I was in solo practice for five years, doing mostly litigation, although I also had some practice in front of administrative agencies. I went on the Kansas trial bench as a general jurisdiction trial judge in 1993. I was on the trial bench for several years until 2007, when I went to the Kansas Court of Appeals. That’s our state’s intermediate appellate court. It’s statewide and jurisdiction, but it is the intermediate court. It handles most of the appeals in Kansas. I left that bench in 2020 after several years to become a full-time faculty member here at UMKC Law School.

What are your interests in teaching areas as a professor?

Since I was an appellate judge, I’m more of a generalist than most people joining a faculty. I teach appellate advocacy, which is a boon to our students to have somebody who was an appellate judge and be their coach and mentor. I also teach professional responsibility, which is the ethics course that students are required to take. I’ve been teaching one criminal law course and a course on statutory interpretation. I’ve taught a course on that since about 2007. Every year, I taught part-time at the University of Kansas Law School before I joined the faculty here.

As a district judge in Kansas, do you have both civil and criminal jurisdiction?

Yes. Our civil law in Kansas includes family law. Throughout the entirety of my time, my several years on the trial bench, I handled civil litigation. Our county was the headquarters for Sprint. A lot of large companies were located there. There’s a decent amount of business litigation. I had family laws as part of the docket. In the last several years, I had criminal law as part of my docket.

When you practice in a place like Kansas City, which is right on the border between two states, were you licensed in both Kansas and Missouri?

I’m still licensed in both states. I got a little rusty with several years on the Kansas bench with my Missouri law. I’m trying to pick that back up now that I’m over here as a professor. I certainly still have my Kansas roots, but I’m gaining more Missouri knowledge. The two states are interesting in a number of ways. One is their evidence codes.

Kansas adopted the uniform rules of evidence four years before the Federal rules came out. They were one of only four states to adopt them, and they’ve clung to them rather than having the Federal rules. Missouri is even more unique. It has no evidence code. It’s case law for evidence. There’s a handbook called Missouri Evidence Law Restated that helps you guide through the cases. It’s different from other places.

I’ve done appeals in a number of states. Missouri was one of the most procedurally difficult places to do an appeal. I’ll say that nicely. They have a lot of strict, rigorous rules. We may talk about a few here in a minute, but it was an interesting system compared to a lot of the others.

The one rule that Missouri has, which is unique and, in my view, not a good one, is their requirement that you state the issues on appeal as a point relied on. It is a picky rule. I’ve known practitioners who are regular appellate practitioners who have had issues or cases thrown out for their failure to correctly figure out the way the Missouri Court would view that rule. It is a tricky one. You have to state each issue separately. You normally don’t list one issue in three sub-issues. You list them separately if they could reasonably be considered separate. They have a rule-stated format for how you have to do it.

I only handled one appeal when I was a lawyer in the Missouri Court of Appeals. I found that scary as I was a practitioner because it is new and unique. The courts have discretion. They can say, “We’ll overlook your error and go ahead and consider it.” They can say, “We’re throwing you out because you didn’t comply with the rule.” They do both. It’s a hard thing for practitioners to deal with sometimes.

The thing that I remember is that their opening brief allowed you 30,000 words, which was an incredible amount of words.

I’m hoping you didn’t use them all.

I didn’t, but I was shocked by that.

That’s an interesting contrast with how we do things here in Texas. The Texas Supreme Court, which administers the civil justice system in our state, has gone out of its way to make our rules and practice more forgiving. Hearing that there’s a trap that exists in Missouri appellate practice, it’s a little surprising, honestly.

If you think about it in terms of a trap, if it’s a trap that can get attorneys, what does a self-represented litigant do? We have more self-represented litigants in our country all the time. I gave a seminar a few years ago in Maryland to their state courts on dealing with self-represented litigants at the trial court. At that time, in Baltimore County, at least 80% of family law cases were self-represented by one party. They have a right to appeal. Judges at the trial court and appellate court make mistakes. We’re human. We want a branch of government to be reasonably accessible. I’m not sure the rules everywhere are designed for that.

This is the perfect segue into one of the things that we wanted to spend some time with you on, which is the idea of procedural justice. You wrote a great law review article on it, and I’ll let you talk about where people can find that. When we talk about procedural justice, what are you talking about in framing that?

By procedural justice, we’re talking about something that social scientists, mainly social psychologists, began working on and through in the late 1980s and early 1990s. There are several decades of social science research showing that if you handle a case through the type of procedures that the public regards as fair, they are more likely to comply with court orders. They are also more likely to consider the judge to be a legitimate authority figure and to have a better opinion of the court system.

The leading person in this area is Professor Tom Tyler at Yale Law School. He’s a professor of both law and psychology. He found that there were four main things that you need to do to have people regard something as a legitimate process. One is to make sure people have a voice. People want to be heard in their own voices, have their words listened to, and, in some ways, have authority figures state some of that information back to them so they can be sure they are listening.

Neutrality: There are rules applied in a neutral way, and you disclose all those rules to them instead of having a black box device that maybe says denied or grants it to something. Respecting the judge when someone comes to the court system is showing somebody whether they are respected in the community. We’re sitting there as the representative of the community. If we treat the banker or lawyer better than we treat the janitor, school teacher, or criminal defendant on a personal level, that’s sending a signal about whether we respect them.

Trustworthiness: Do they think the decision maker is sincere and caring? That’s the same thing that drives us when we go to the doctor. If you go to the doctor, research says, “If you think your doctor is sincere in caring, you’re much more likely to comply with their recommendations of what you should do for your health than if you had a perfunctory visit with somebody.”

If we practice those four things on the bench, we can improve people’s opinion of the court system as they go through it. You can also improve compliance with orders. The research on this was done initially more with law enforcement than with courts. These same principles work when law enforcement is out in the field interacting with the public. You’re much less likely to need to use violence if you listen first. There are some situations in which you have to take control, but command and control are often not the things that are best in terms of long-term relationships with people. It’s better to be listening, state a neutral rule, and apply it fairly.

I first wrote an article for the American Judges Association and a national group of mainly state trial judges in 2007, along with a friend of mine who’s a judge in Minneapolis. We have spent a lot of time around the country talking with other judges, both state and federal, about how to implement those kinds of ideas in court. The article that I sent to you on this is one that I did in 2020 on how appellate courts could implement these rules and try to improve people’s perception of procedural fairness in the appellate bench.

I want to talk about that in a minute. One of the things that you spent some time on in that article was the statistics in terms of how the public perceives both lawyers and judges and, in particular, the US Supreme Court. As of 2020, the numbers weren’t trending well. Have you looked back? Has that trend continued over the last several years?

The numbers have gone way south. A majority of the public disapproves of the United States Supreme Court. It’s there at a 50-year low in public opinion of that court. There’s a sharp partisan divide in people’s opinion of the court. Only 13% of Democrats at the beginning of the last term said they had a positive opinion of the court. Seventy-four of Republicans had a positive opinion of the court.

It’s not good for our country in the long term to have that split in the viewpoint about the nation’s highest court. People now view the United States Supreme Court as political. More importantly, from my perspective, the National Center for State Courts does an annual survey of people nationwide. They ask people for their opinion about the courts in their own state. One of the words people now say to describe the courts in their state is political. That was not true several years ago. A majority, even in states now, is saying, “Our courts are political.”

Procedural Justice: To have that split in the viewpoint about the nation’s highest court is not good for our country in the long term.

I jumped over this topic a minute ago, but it’s something I want to bring up a little bit and get close to this discussion. How does Kansas pick its judges? In Texas, everybody is elected, and it’s all partisan.

Kansas is a hybrid state. Kansas and Missouri both are, by the way. Although we don’t like to say it on the Kansas side, we adopted the Missouri plan for judicial selection back in the ‘70s through a constitutional amendment. That meant we had a statewide commission that recommended three candidates for each Supreme Court vacancy.

The way it worked when they adopted that constitutional amendment. If your local judicial district also voted for the constitutional amendment, you switched then from partisan election to a nonpartisan system. About half of the trial judges in Kansas are chosen in a nonpartisan system, and about half are chosen in partisan elections. Small towns generally prefer to have elections, and the only option is partisan elections. Larger communities in the state are split.

In Johnson County, where I serve the largest suburban county in the Kansas City area, we had merit selection. Wichita, which is the largest city in Kansas, has partisan elections for its judges. The trial judges are split. The State Supreme Court is a merit selection. In my former court, the Kansas Intermediate Court of Appeals, we used to be a statute that mirrored the State Supreme Court, but we were never put in the Constitution.

A few years ago, when there was a high Republican majority in both houses of the legislature, and Governor Sam Brownback was in office, they changed the selection system from my former court. It’s now the federal selection light. The governor can pick anyone they want, subject to Senate confirmation. I say light because we don’t have lifetime appointments. We have a term that the first time after you’ve been in office a year, you have to be on the ballot for retention, and every four years afterward for our intermediate appellate court. That’s three different systems. Kansas and the trial courts are mixed in others.

I can imagine that, as a voter in Kansas, it’s difficult to follow how to pick some of your judicial candidates because some are partisan, some are non, some have been appointed, and some are elected.

Some states have dealt with that where they have nonpartisan selection. Utah and Colorado are two examples. They have statewide judicial performance evaluation commissions. Utah has a good one. They have citizen observers that come in and look at every trial judge twice, at least during the two years before they come up for retention. They give the judges an evaluation before they need to put their names in.

Sometimes, the judge will decide not to seek retention because they’ve received feedback about their demeanor on the bench and their approach to the job that has gone uncorrected. They’d prefer not to go through that process, given what would be a messy retention. Others improve their performance based on what they’re told.

From my perspective in this procedural justice bit, the commission in Utah specifically adopted procedural justice as the lens through which their citizen reserves look at court behavior on the bench. They have an evaluation report that considers those principles. Does the judge give people a voice, apply neutral principles, explain their decisions, and seem to respect people as they come through the court system?

In Texas, every judge, from the Justice of the Peace to the State Supreme Court, is on the ballot partisan. Few people know anything about what goes on in any of those courtrooms. There’s not a reporting agency or anybody that does anything about that unless there’s something that a particular judge does that makes the news.

In Texas, you’ve had several examples at the trial level and a couple of your appellate courts where you’ve thrown out the entire bench in an election and replaced them with an entire new group, which cannot have been based on the individual people. Some of them were undoubtedly good judges who had viewpoints or at least a party registration that was not in favor of that election.

Part of what I argue in my latest paper is that political views do matter. I don’t think it’s unreasonable for voters to make decisions based on that. On the other hand, the idea of throwing out the entire bench and having no one with any experience in a courthouse of more than twenty judges seems to me to be not the best decision that we might make.

Procedural Justice: Political views do matter, and it’s not unreasonable for voters to make decisions based on that. On the other hand, throwing out the entire bench and having no one with any experience in a courthouse with over 20 judges doesn’t seem to be the best decision we could make.

I agree with you from experience that that is true. If you lose good judges, you lose some judges that need to go. You get good judges and some judges that probably shouldn’t have been in that spot. Unfortunately, the lawyers are the ones left to pick up the pieces.

Several years ago, you saw someone who was perceived as a good judge. We’ll focus specifically on our appellate judges. Generally, it wouldn’t draw an opponent from even the opposing political party. I can’t explain all the reasons why, but it coincides with the overall trend toward politicization of the bench. Even good trial and appellate judges alike, it’s almost guaranteed they’re going to draw if not a primary opponent. It’s an opponent in the general election.

We have lost good judges at every level to folks who see the judicial office as a stepping stone to something else, or even some who see it as a great job. It’s a job where you provide a lot of service to the locality and the people of Texas, but they’re treating it more like a job that they get for several years rather than the calling that it truly is. It’s a difficult thing to have to observe.

One other thing I was going to mention before we move on is that we do have a judicial conduct commission that, to some degree, regulates the conduct of judges. It’s not at the level that you were describing about there being this ongoing review process. It’s only when bad things happen that the Judicial Conduct Commission gets involved and has the ability to discipline our judges.

Judicial Conduct Commissions are looking for violations of rules. You can be a judge who’s unsympathetic and counterproductive on the bench without violating any of the code of judicial conduct. I agree that’s an important aspect of the system, but it doesn’t get us quite as far as we’d like in terms of having the public feel like they’re well served.

It’s difficult because, as a lawyer, you want to educate the public, but as a lawyer practicing in front of a judge who’s not sympathetic and thinks he needs to be on the bench, there’s only so far you can go to advocate against that judge as a practicing attorney, which makes it that much harder. We’re the ones with the actual experience to inform some of those conclusions.

On the procedural justice issue, you talk particularly about appellate courts in your paper. I want to spend some time there because, for most people who are outside of this show, the justice system and appellate court is a black box. You don’t know what goes on. Occasionally, you’ll see some opinion in the news, and that’s about the extent of people’s knowledge.

The Brennan Center in New York is doing some good work now. They have a state court report, and they put out a report on what they call the shadow docket of State Supreme Courts. Professor Vladeck at Texas has done his book on the shadow docket at the United States Supreme Court, where things are handled, not with the merit’s opinion docket after oral argument but through motion practice.

Every court has that, and it’s not inherently bad. What can be bad is when you use that to make decisions that are unexplained and don’t ever get them onto the actual docket where you’re in a transparent, open way resolving the case. They looked at all of the states and how they handle things like that.

I had to say, as someone who has been on an intermediate appellate court, I’ve even sat with the Kansas Supreme Court several times. They have fill-in judges when one of their judges recuses. Even with my experience, I would’ve trouble knowing how all of that is handled in Kansas. I agree with you that this black box concept is a problem that we’re not completely sure how something is handled. Down in Texas, if you would seek an interlocutory appeal on something that goes up on the civil side, would you get a reasoned explained order, or is it possible that the court would send you an order saying granted or denied?

For permissive appeals, which is what you’re describing, that’s been a point of contention. They changed the statute, requiring you to ask for permission from the court of appeals and make an application. What you would give back typically was a sentence or two saying, “Denied. You don’t meet the requirements.” That raised some flags at the Texas Supreme Court, which said, “We need to be doing more.”

This last session, the legislature passed a statute saying that you have to give us an opinion that goes a little bit further. They gave the Texas Supreme Court the power to specifically review those rulings and decide whether or not they should take the case. If it feels like the court should have taken the case, they can send it back down and instruct them to do so. That was a good example of what you’re talking about.

It is a good example. If you assume that attorneys file a motion in a civil case for a stay pending appeal and there’s an important issue, you may have paid tens of thousands of dollars to have the attorneys prepare that material, and you get a one-sentence order that says you’re denied because you didn’t meet the requirements of Rule 5.31 two subsection GA3. You’ve paid a lot of money to your attorney, and they’re still not sure what it was they didn’t do. From the client’s perspective, they’re not sure what they didn’t do. They’re sure that they didn’t get a fair hearing. Having some reason for an opinion come out even when it’s short, is important even in motion practice.

Part of that may not be a primary consideration, but it is the effect that something like that has on the attorney-client relationship because that client has spent potentially tens of thousands of dollars to be told that their lawyer messed up. It’s procedural justice from the client’s perspective, but it doesn’t seem like courts always consider the effect of their rulings on the attorney-client relationship. That is what has happened. There’s been the expenditure of money and no real explanation for what went wrong.

I look at it in a broader picture. I understand you’re looking at it from the perspective of the attorney. I’m looking at it from the perspective of the system. If I throw out a case because the attorney screwed up, I’m saying, as a judge, the system isn’t going to hear your claim for a reason completely unrelated to the merits of your claim.

For the most part, people ought to be able to rely on licensed attorneys to present their claims and not be thrown out of court for failure to comply with rules. If our rules are complicated for you to comply with and understand regularly, we ought to fix them. We have to recognize attorneys when they’re taking the bar exam and when they’re practicing are on a bell curve. We aren’t all the best at everything, and we’re not all the best at everything every day.

All of those attorneys who are licensed to represent clients are representing somebody who should be heard in court. I agree with you that part of the problem is that it interferes with that relationship and gives them a bad view of lawyers, but it also gives them a bad view of the system because the system has not even heard their claim, let alone resolved it in a neutral way and explained why they lost.

One of the pushbacks I’ve heard in this whole debate over permissive appeals in Texas is, “We are busy, we’re understaffed, and we don’t have the time and resources to write opinions in all of this stuff.” I’m curious what your response to that is.

I did a seminar in Kansas for the research attorneys who work at our state appellate court a few years ago. They’re the ones who draft the orders on motions. They’d not thought of it in this way. The court I was on would get, at its peak, 14,000 motions a year, but the vast majority of those were not contested. Less than 1% had some opposition filed against them. They were able to come up with ways to have fairly quick explanations in the vast majority of situations they encountered.

That would explain why they were denying something if there was a denial coming their way and give a good clue of how you would fix that if there was a fix available. It was a matter for them to think through this as a salutary goal, having people understand why we’re doing what we’re doing. We can explain it in a paragraph or two.

Another situation in the Kansas courts that I had as a judge is we have a rule that lets us affirm by rule. If the trial court has given a good explanation of its ruling, we can say it is affirmed under the Supreme Court rule, such as based on the trial court’s opinion. What I would do if I had one of those is I would give a one to one and a half page decision that said, “We agree with the trial court decision in its primary holdings, this, that, and the other thing.”

To make it clear to the person we had read it, we had thought about it and concluded with. Therefore, we affirm this rule. It didn’t take that long to do the page and page and half-opinion in a case like that. It gives them the idea the appellate court didn’t put a stamp on earlier opinions. We had three judges who read it. A panel issued an opinion, and we thought about it.

You mentioned rules, and rules are another area that you address in your paper because they’re written by judges and lawyers and adopted by judges. Self-represented litigants read this. Many of the Texas rules of civil and appellate procedure were written decades ago in a language that’s hard for us attorneys to follow. I can only imagine what a self-represented litigant must feel.

You have Brian Garner right down in your state available to hire to rewrite your rules at any time, as he did with a number of the federal rules that were restyled to make them easier to understand. Plain language is important as we have many self-represented people in our courts. When I was on the trial bench, one of the things that struck me was that it was hard to get judges even to agree sometimes to put attorneys on the panel that was revising our rules.

We sit in a meeting of judges and say, “We need to revise such and such rules. Let’s have a subcommittee of our criminal judges look at the rules and fix everything. Are there some other people that might be interested?” On the civil side, when we made our rules, not only judges and lawyers, but we also included a couple of people who had been jurors recently in our court so that we could have some perspective on them. We used that as our easiest way to get some lay representation on that committee, but I’d like to see a lot more non-lawyer folks on committees like that.

One additional reason from a procedural justice perspective is this. A study in California looked at lawyers and non-lawyers on these same criteria of whether it was more important to have fair procedures than get the outcome right. Lawyers in California were more focused on getting the outcome right. If you tell people, there’s an 80% chance you’ll win, and you win.

Even if the judge is a jerk and they didn’t explain the law correctly, you can go home and tell your client, “This is what I told you was going to happen. This was fair.” The attorney looks at it analytically that way, but when they ask the public who’d had experience in the courts the same questions, the outcome is much less important than whether the case was handled through fair procedures. Bringing the lay people in may have a different way of looking at the system than we usually do.

You also talk about oral argument and the conduct of judges’ oral argument, which I thought was interesting because that is a place where, as an attorney, you don’t think about public perception as much.

That’s becoming more important, as we have video and audio of most courts’ oral arguments in the post-COVID world. When judges are almost coming off the bench at people in more of an advocacy mode, it’s hard to look at them as being as neutral as you might like to see them. While I understand why judges will express a tentative view, it’s better if they can phrase that like, “I’ve looked at the briefs, I’m thinking X. I don’t see where you have an answer to Y. Could you explain how you have an answer to Y because I don’t see it yet in your brief as opposed to being quiet in their face as sometimes a personal argument?”

The example I gave in the article was John McCain, who sat in on the campaign finance decision on the McCain-Feingold Bill and heard Supreme Court justices ridiculing things he had spent a lot of time writing. It didn’t seem respectful to him. In looking at a co-equal branch of government and its work product, the questioning was conducted in a different way. I can understand that even though I understand how the judges were looking at that. You should always be thinking about how the people who are losing in this think about this proceeding.

I completely understand that. I’ve had similar thoughts in oral arguments before, watching other oral arguments when you see the way a panel is interacting with attorneys.

The situation, I suppose, as a judge, in which I would not change my behavior is when I ask you a yes or no question, and you pretend you’re facing the nation and don’t have to answer that. If you’re continually evasive of a question an appellate judge is legitimately trying to ask, I can understand why things will go south quickly. If you’re having a conversation and reasonably responsive to the questions that are being asked, we can probably tone it down a little bit.

Finally, opinion writing, which you lead into in terms of how you address the parties, the issues, the lawyers, and all of that, is another big area for improvement.

For me, all opinions should be written for a lay audience. Years ago, people would say to the judges, “You’re drafting this for the lawyers so they can figure out how to handle the next case.” We’re a branch of government. Everybody ought to be able to understand what we do. Much of our stuff is available online now, not through Lexus, Westlaw, and other databases, but fully on the web from all our courts.

There was a year at the Minnesota Court of Appeals, back in 2019, when 150,000 opinions from their intermediate appellate court were downloaded. Most of them are unpublished. When you think about all these people who are looking at this and trying to understand what the courts are doing, they may have done a Google search for Minnesota landlord-tenant law, and this opinion has come up. They want to be able to understand it as a layperson would.

I found that, as a judge and many other members of the Kansas appellate court, if we wrote something for the layperson, we understood it a lot better than we had before. I would tell lawyers in your briefs. See if you can figure out how you would explain something to a layperson and break it down to its ultimate, most simple principles. If you can’t explain it to your aunt or the grocery store clerk, you don’t understand it as well as you could. If you can explain it in those terms to a judge, even a judge will understand.

You talked about writing a letter to the loser in your article, which I thought was a great way to put that because I hadn’t thought of it in that term, but what a good way to frame an opinion.

There are two examples that come to mind for me. One was I often wrote the appeal decision affirming the termination of someone’s parental rights. I can’t imagine something more important to someone than getting in the mail a decision from the court saying, “It’s over. You are never going to regain your rights to this child that you had, and you believe because you appealed. You should still be raising.” I added material to those opinions that tried to address that person specifically in a way that would be compassionate yet still explain what we were doing. Lots of my court’s decisions still include language similar to that. It’s important that we think about their interests and not write a perfunctory opinion.

The other example, much more big picture, is the Canadian Supreme Court dealing with Quebec secession, no more important issue in Canada. They did a great job of both being respectful in the argument and writing a decision that was respectful to the losing parties, which helped them maintain their constitutional legitimacy and a good opinion from people throughout the country.

I see a lot of social media judges writing opinions that almost seem to be intended to get wide disbursement because they have clever turns of phrase. That strikes me as a dangerous game to play as a judge because it may look interesting or entertaining, but it may not come off that way to one of the people who’s receiving it.

Humor on the bench and in judicial opinions is one of those touchy subjects. As the trial judge, my personality was that I could not be humorless in a courtroom, but you have to make sure that you’re not making fun of somebody. You’re making fun of things that happen. There are funny things that happen that aren’t at anybody’s expense in every trial, even murder trials. There are things that will happen. You can lighten the mood occasionally if you are careful and pick the right moment. Some people can’t. I will agree.

In an opinion, it seems to me that you can have stylized writing, but if your writing is aimed at making fun of or ridiculing a party or their argument, you need to be careful about that language. Sometimes, arguments are absurd. I’m not going to say that you never put that in an opinion, but you need to be careful when you do that.

Let’s transition over, and this ties directly into what we’ve been talking about, but as a slightly different topic, which is the idea of partisanship. You’ve touched on that a little bit, but what the takeaway is when you have judges who are partisan actors, some directly partisan to get onto the bench, and others who at least brought a partisan background to becoming a judge.

Even in the nonpartisan system, you are often somebody who’s been active in politics to be the person who gets appointed. People say that the best way to be a federal district judge is to be the roommate of a US senator earlier in their career. You’ve been involved in at least one of their campaigns along the way. I’m not blind to that.

When I came into the bench, particularly in a state like Kansas, what we always used as our mantra was we’re non-political. When people would oppose judges for retention, we would say, “Do you want your judges to be politicians?” People believe we’re political anyway. The truth is we can’t deny that. If you look at public opinion surveys on abortion, healthcare, taxes, immigration, the environment, the death penalty, gun regulation, foreign policy, and how big our government should be, there are significant divides between Republicans and Democrats on all of those things.

For judges to pretend none of that matters. When judges are deciding, “How big can the government be? How should we interpret these laws? What is the proper relationship between the branches, states, and federal government?” We can’t claim that’s completely beside the point. Do we have to be a true partisan actor? No, I don’t think we should deny what the public knows to be reality. They know that people’s viewpoints and values matter and how they view issues as a judge.

Justice Breyer took a public tour with his book right before he left the bench, and he’s doing another tour now, saying, “The US Supreme Court isn’t political, and it’s not partisan.” Nobody buys it. Does it help the system for you to go out with a public message that the people believe is untrue? I can’t believe it does.

It seems to me one thing judges should do is be upfront about it. Yes, I do have positions. I do have general beliefs. I will do the best I can to decide cases fairly, but I’m not going to deny that I have existing beliefs. You mentioned these people with highly stylized opinions. There’s something else going on there, which is we’ve appointed a number of people to the bench who were appointed because they would be rabble-rousers, and they would write opinions that would move the envelope as far as possible without necessarily working with the other side. That’s to the long-term detriment of our country and our system.

Procedural Justice: One thing a judge should do is be upfront about “Yes, I do have positions. I do have general beliefs. I will do the best I can in deciding cases fairly, but I’m not going to deny that I have existing beliefs.”

I talked earlier about the way in which the US Supreme Court is now viewed through this partisan lens. Republicans and Democrats have greatly different views of them, but at our state level, the state Supreme Courts, as you note, administer justice throughout the state. They need to work together on administrative matters as well as decision matters. In the long term, we’re much better off if they can work together, even if that makes it difficult occasionally to reach a consensus on an issue than if they are off in their camps, sending out fire-breathing messages all the time in their opinions.

The thing that I looked at in my most recent article on partisan judges is intellectual humility as the key criterion for judges. It seems to me that if we would look on both sides for people who have intellectual humility, you can certainly select plenty of Republicans with intellectual humility and plenty of Democrats with it and put them on the bench. It’s not something that is in completely limited supply, but it would help a great deal both from a procedural justice standpoint and generally for the courts.

When you talk about intellectual humility, what are you talking about there? What are you looking for?

It’s only been defined in social psychology literature in the last decade. What you’re talking about is that someone in their core beliefs understands and recognizes the limits of their own knowledge and has an awareness of their fallibility. You want to judge that it is going to say, “I may not be right.” When you say, “I may not be right,” you are so much more likely to listen to people and respond to their views.

There’s a whole host of qualities that come with and are associated with intellectual humility. You’re more likely to be open to others’ views. You’re more likely to be a lifelong learner rather than thinking, “I’ve already mastered this stuff. I know what I need to know. I need to tell other people what to do.” You are listening. You’re also more open to the possibilities of engagement and cooperation.

When you’re on an appellate bench, I couldn’t make any decision on the Kansas Court of Appeals unless I had at least one other judge agree with me. I hoped that I’d have two on each three-judge panel. When I sat on the Kansas Supreme Court by designation, I needed at least three other members of that court to agree with me before I would have any impact on the result. Being able to engage in a cooperative manner is helpful. Some judges are into making a name for themselves and getting the highest prestige and rank they can get. People with intellectual humility tend to be motivated not by that but more by intellectual exercise. That can be a valuable thing for a judge.

One of the last things I want to talk about that I think is interesting, and since the people that are reading this are generally appellate nerds like us, is a unique feature of Kansas. You mentioned Indiana. The Kansas Court of Appeals doesn’t have horizontal stare decisis. How does that work? How do you navigate that?

It works wonderfully. If you asked most attorneys in Kansas, I’ll bet most wouldn’t be aware of this. One of the reasons I wanted to do an article on it is because if you are in a state where this is a possibility, it’s malpractice not to be aware of this opportunity to litigate a matter in a way that you otherwise couldn’t. In Kansas, if the Kansas Court of Appeals has already decided on an issue, even if they’ve decided on it in a published opinion, another three-judge panel has the same authority to decide that issue and can disagree but not overrule them.

If the court heard an issue in a bank, that would control us all, but the Kansas Court of Appeals, like most intermediate statewide appellate courts, doesn’t sit in the bank often. We only did it once in the thirteen years I was on the court. That was for an abortion case. I would be surprised if they sit in a bank in the next several years. That’s not something that happens in Kansas. The disagreements are also fairly rare.

Kansas Court of Appeals was only created in 1977. In the history of the court through 2023, it’s had about 47,000 decisions. Sixty-eight times, they’ve disagreed with one of their prior opinions. It’s less than two-tenths of 1%. Yet, it offers an opportunity for attorneys to litigate in a way that you wouldn’t otherwise have available.

When you’re in the trial court, you can set your case up for a different result on appeal, knowing that the appellate authority is only the intermediate appellate court. That’s squishier than it might be in some states. When you get to the court of appeals, you can argue directly that prior precedent is wrong, and here’s why. We want you to fix that in this case. If the court disagrees with its earlier opinion, the Supreme Court has the chance to take the issue up, as the US Supreme Court can resolve circuit splits.

The fact of the matter is sometimes, the parties don’t seek further review. We lose insurance companies’ funding. They think the risk of going further may be greater. A bank might say, “Going further is greater than the risk of letting this stand where we’ve also got the other authority still out there that we can still say.” It helps the law develop in a way that can be helpful without, since we don’t use it that often, upsetting the system in any great way.

A lot of times, the first case that comes to an intermediate appellate court won’t be well briefed. The judges won’t have thought about it carefully. It might be issue 8 in a 10-issue brief, which is not the best way to raise an issue. There are a lot of reasons why you may not get the right answer the first time around.

This is where I chime in and express my confusion because when we first talked about this topic briefly before we started recording, I was thinking, “How does that work?” I appreciate your good explanation of it. What it sounds like to me is that the highest level court, the Kansas Supreme Court, has authority that is binding on every court in the state. Beyond that, you’ve got a lot of persuasive authority out there.

A published decision of the Kansas Court of Appeals is binding on trial courts. If you have conflicting public published decisions, neither one of them is bound because the second panel didn’t have the authority to overrule the first. The trial court and counsel need to make their best arguments for the rule that applies.

That sounds like a great opportunity for advocacy on the trial court lawyer’s part and the appellate lawyers’ part. That’s the lens through which we look at most issues on this show. I see the value, the challenge, and the intrigue there. It would require a mindset adjustment for folks like me and Jody to go and practice in that scenario because we’re used to like, “I found a binding case in our appellate district. That’s the one I’m going to write this case all the way to the end and get the judgment and victory.”

The federal circuits follow that rule. They have horizontal stare decisis. The trick is that sometimes they will distinguish cases so far that you still don’t recognize the rule. We are able to do that more openly rather than saying, “This doesn’t have fact B, so it doesn’t apply.” We’ll go ahead and disagree with the rule openly. Whereas if you’re constrained, you may use other techniques to get to the same place, but it won’t be quite as transparent about what’s going on. I’m not saying every court does that, but there are cases out there where that appears to be what’s happened in systems where they’re constrained by horizontal stare decisis.

I hadn’t thought about it, but you do read some opinions where things are stretched to distinguish another case.

I think about how different it must have been prior to that system. I find it intriguing and interesting. Thank you for talking to us about that. Yeah. I’m not nearly as judgmental about it as I was when we first hopped on the call.

Thank you. I consider that a success.

In hearing you talk about the other topics that we’ve covered, I found them to be truly insightful. I hope that our readers, whoever they may be, judges, lawyers, legislators, and lawmakers, will take them to heart because there’s so much antagonism in our system coinciding with the antagonism in politics in our country. The courtrooms, opinion writing, and reading ought to be far more reasoned, rational, genteel, and respectful than what we see in the media every day. This is an interesting topic that our readers will get a lot out of. Thanks for visiting with us about it.

For any of your readers who do want to read any of the articles that I’ve got on this, if you go to the Social Science Research Network, SSRN and look up my name, Steve Leben, you’ll be able to find a link to download each of these three articles. That would be a way to do some further reading if any of these are of further interest to you.

They’re all interesting. I read them to prepare. They’re worth your time.

Thank you.

Since we opened with reference to Twitter, before I move on and ask you for your tip war story, what is your Twitter handle for our readers who are still out there on Twitter?

My Twitter handle is @Judge_Leben.

As I signaled, it’s our tradition as we reach the end of our interviews to allow our guests an opportunity to provide a tip or a war story to our readers. Is there something that you’d like to offer above and beyond what we’ve already covered, Judge?

I’ll re-emphasize a point, which is this. Explain something to a layperson and make your argument as short as possible. When I was preparing for a docket when I was an appellate judge, I’d have a stack of a lot of briefs. Like most lawyers, I was self-selected as a procrastinator. That meant I was trying to read through a lot of briefs at the end of the cycle right before my oral argument.

You need to make your brief interesting, readable, and as short as you can. Try to explain something to a layperson. That will help you explain it to a judge. Once you get it down to that level, it’s hard for the judge to disagree with you if you’ve got elemental points, and they seem to be persuasive. Make it short, explain it in lay terms, not legalese, and you’ll do better with your appellate judges.

Thank you again, Judge, for being with us, and we appreciate your conversation with us.

Important Links

Love the show? Subscribe, rate, review, and share.

A special thanks to our sponsors:

Join the Texas Appellate Law Podcast Community today:

About Judge Steve Leben

The Honorable Steve Leben has been named the Douglas R. Stripp Missouri Distinguished Professor of Law. Leben first joined the faculty in 2020 as a visiting professor after 27 years as a Kansas judge and 11 years of law practice in Kansas City. This fall, he becomes the fourth to serve as the Stripp Professor of Law, following Rafe Foreman (2011-2019), Robert Klonoff (2003-2007), and Andre Moenssens (1996-2002).

Leben’s research interest is procedural justice, and he has trained judges around the United States on how to improve perceptions of fairness in court proceedings. The National Center for State Courts gave him its highest award, the Rehnquist Award for Judicial Excellence, in 2014 in recognition of that work. He has recently published articles in the Kansas Law Review (on procedural justice on appeal) and the Drake Law Review (on procedural justice in a pandemic). Leben is an elected member of the American Law Institute and an officer of the American Bar Association’s Judicial Division. At UMKC Law, he teaches Criminal Law, Appellate Advocacy, Legislation, and Professional Responsibility.