Friday, October 20, 2006, 2:50 PM

Spotlight on Judges Series: Judge James A. Wynn, Jr.

The Raleigh Appellate Group is honored that Judge James A. Wynn, Jr., the senior associate judge of North Carolina's Court of Appeals, has agreed to be our inaugural guest in a new recurring NC Appellate blog feature, Spotlight on the Judges.

Judge Wynn first joined the North Carolina Court of Appeals in 1990, and he was an Associate Justice on the North Carolina Supreme Court in 1998. During the Clinton administration, Judge Wynn was nominated to the United States Court of Appeals for the Fourth Circuit.

Judge Wynn received his BA in journalism at UNC-Chapel Hill and his law degrees from Marquette University Law School and the University of Virginia School of Law. Judge Wynn is a Captain in the US Navy Judge Advocate General Corps and serves as the Commanding Officer of the Navy Reserve Judicial Unit. Judge Wynn is also a husband and the father of three sons, the eldest of whom is following in his father's footsteps and is a first-year law student at Harvard.

Judge Wynn, please identify the one federal or state court judge, living or deceased, whom you admire most and explain why.

I admire Thurgood Marshall for the depth of his experience and for his courageousness and commitment to the rule of law. At the state level, I will always admire Henry Frye and Cliff Johnson, two of the most honest, decent, ethical, totally committed individuals I've ever known who brought to our courts not just representative diversity but also substantive diversity. They were tough as nails, but wonderful. And Cliff Johnson was the sharpest dresser this court ever saw.

What are your most favorite and least favorite aspects of being an appellate judge?

What I like least is that we are somewhat isolated from the legal community and the general public. We don't have day-to-day contact with lawyers and parties. Our work is confined generally to records, briefs, and contact with clerks and other judges. It's a very limited environment to work in. And this limited environment links back to my answer to your first question and the importance of diversity at the court.

What I like most is the challenge of addressing tough legal issues in differing factual scenarios and shaping legal opinions that affect not only the litigants in the matter but citizens across North Carolina. We have to give extra care to what we do because of stare decisis, because we affect other litigants and other judges.

How would you describe your judicial philosophy?

I seek to be fair and impartial in my decision-making. If the law is clear and unequivocal, I surely follow it. The difficulty comes in decisions where the law is not so clear and the decisions are not cut and dry. In those instances, I seek analogous law in cases and statutes and apply my understanding of the law along with common sense to reach a decision that I believe represents a correct reading of how the matter should be decided under our laws.

Of the many opinions that you have written since joining the Court of Appeals, what opinion/opinions -- majority, concurring, dissenting, or other -- has/have been the most memorable and why?

One of the most memorable was Nelson v. Freeland, when I was on the Supreme Court. That was the case where we abolished the distinction between duties of care owed to licensees and invitees. Burley didn't necessarily disagree with my reasoning, but he felt we should save the issue for another day since the parties had not briefed it. But there was no "another day" for me on the Supreme Court, as I had less than 30 days remaining on my appointment to that Court since I had lost the November election to stay there. One thing Burley did make clear after the decision, and I'll always admire him for this--he said that the Court wouldn't revisit the decision the next term simply because the composition of the court had changed. Burley believed in the integrity of the Supreme Court as an institution.

At the Court of Appeals, my dissents tend to be more memorable. For example, my dissent in Vernon v. Mabe Builders, where I dissented on the basis that the Industrial Commission had to import notions of fairness when considering settlements.

Many of these opinions I think probably make a difference in the laws of North Carolina, but I don't take them as badges of honor. I don't separately concur or dissent for honor, I do it because of what I believe is the right result. And when you stick with that principal, those opinions may not be the law now, but I think they will become the law.

Early in my judicial career, I had a case about whether a jury could employ last clear chance in the case of contributory negligence. It boggled my mind that we hold on to contributory negligence, even though it's been vilified, even in England where it originated. That one opinion got more headlines that you could imagine. But I was just trying to apply my best logic and reasoning, which may not be the most politically correct, but that's not my job. I'm a judge, not a politician.

The U.S. Supreme Court in Republican Party of Minnesota v. White struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on legal disputes and political issues. As a judge subject to popular election and as an NC voter in the midst of election season, how do you view the U.S. Supreme Court's ruling, and how do you view elections as a means of picking judges?

For the past three and a half years, I have served on the Joint Commission to Evaluate the ABA Model Code of Judicial Conduct precipitated by the White decision. White does not compel speech, it simply says a state may not prohibit a judicial candidate from announcing his or her views on disputed legal subjects. Interesting, only eight states had such a judicial canon at the time of White, and North Carolina was not one of them.

White does not address the further issue of whether a state may prohibit a candidate from making pledges or promises.

Also, most states prevent judges from directly soliciting campaign contributions, especially from the attorneys whose cases come before them. In North Carolina, now you can. North Carolina's canons were changed to allow judges to do all kinds of things they couldn't do before. It is disappointing to me that the bar and judiciary haven't looked more openly and more deeply into where the lines should be.

In your recent dissent in State v. Peterson, you discussed the role of the N.C. Court of Appeals. What do you see as the role(s) of the N.C. Court of Appeals and your role(s) as a judge on that court?

The Court of Appeals is a working court in which each judge writes over 120 opinions per year. We rarely pass off appeals as per curiam although we could surely do so in many cases arising from agency decisions. But as a matter of jurisprudence, our role is limited. We can't, for instance, abolish common law, as we found out when this Court attempted to abolish the common law of alienation of affections. We can't overrule the decision of another panel, although at times there may be a conflict in our rulings. In recent years, with the Supreme Court issuing less written opinions and affirming our opinions based on dissents, I believe the judges on this Court feel a greater need to explain the law and engage in dicta.

I also think the right of the party to appeal based on a dissent is very powerful. We are the only appellate court that I know of with that power. This is particularly important because only one panel binds all other panels. That two judges can render a decision that it will take four justices to overturn--that's pretty powerful. The opinion of those two judges is otherwise binding on all other judges.

I have been told that three judges unanimously can't certify issues to the Supreme Court. I continue to think this is illogical. Just one judge can certify issues for Supreme Court review, but three judges can't. That is totally illogical.

I think this is one of the most powerful appeals courts in the country, and each of us needs to be very careful about the decisions we render.

In your recent concurring opinion in Broderick v. Broderick, you discuss some of the confusion and disparity of rulings in the wake of the Supreme Court's Viar v. N.C. Department of Transportation decision regarding the Rules of Appellate Procedure. In the opinion, you suggest that assignments of error should be abolished and that the Rules of Appellate Procedure should be applied in a predictable fashion. How do you envision our path out of the Viar confusion, and what changes, if any, would you like to see to our appellate rules and/or their application?

I think there should be changes to the rules, though I don't think they would need to be significant. But I don't see the kind of leadership needed to make those changes.

We need to return to the basics and reexamine the purpose behind the rules. We need to move away from dismissing appeals based on technical rules. I mean, we moved away from common law pleading; why are we doing it on appeal? Dismissing appeals is so easy--no research, no effort. You just say "Improper spacing, wrong font in your footnotes. Dismissed."

It's intriguing that the federal courts don't require assignments of error and don't dismiss like this for rules violations. Especially assignments of error--no one knows what they're supposed to look like anymore, or what's adequate and fair. The assignments are supposed to give the non-appealing party notice about the issues on appeal, but I rarely have seen that become a problem. We need to employ more common sense, and we need to try to do our job and give answers, not just dismiss.

Rules are important. But when we strictly apply rules, we are denying our citizens access to justice. When this court, and the opposing party, can understand the issues, we owe it to our citizens and the system of justice to decide cases on the merits.

What qualities do you look for in deciding whom to hire as a law clerk?

I examine the writing and research abilities of the applicants. I try to look at students from the North Carolina law schools, though that's not necessary. I evaluate the letters of recommendation and how well the applicants did in school. And a successful applicant must be pleasant, respectful, and loyal.

What are the three most important suggestions you have for attorneys regarding how to improve their written work product filed with the Court of Appeals?

First, clearly identify the most important issues for the court. This is so important.

Second, be sure to include a good, thorough set of facts that cites to the record.

Third, conduct honest and thorough research, and discuss your research in a persuasive but also fair way.

What are some of your pet peeves that you see fairly consistently in the briefs filed with the court?

Briefs that run on and on with reasoning that is difficult to follow. It's also troubling when parties fail to conduct adequate legal research or fail to consider the application of contrary law. And I don't like redundant briefs--don't say the same thing over and over.

What are the three most important pieces of advice you have for attorneys regarding how to improve their performance at oral argument?

Be prepared! You need to know your case better than the judges.

Second, remember you only have thirty minutes to talk to judges, not a jury. So avoid the impassioned rendition of the facts and allusion to the parties. It may entertain the clients attending but it does not help with the writing of the opinion.

Third, start with the "deep issue: by following one of my favorite writing teachers (Bryan Garner of LawProse, Inc.) advice. Start with an introduction beginning with the major premise, then the minor premise and then a conclusion sentence. It creates a persuasive outline for the court to follow as you go into your discussion.

What are things that a lawyer might do at oral argument that will inadvertently contribute to losing the case?

When lawyers are asked questions and the lawyer either ignores the questions or keeps talking right over the judge.

Lawyers' failing to give deference to a judge when it's clear a judge wants to ask a question.

Being argumentative in response to questions.

And lawyers' being disparaging in their language. That's unacceptable. Be courteous--we're professionals.

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