A Conversation with Judge Michael Lynch of the Appellate Division, Third Department

If you’re invited to a brown bag lunch with a judge, be sure to bring a lunch. That was the mistake I made this week at the Albany County Bar Association’s first quarterly brown bag lunch event with local judges. (In my defense, I ran out of time to grab lunch and wanted to make sure I was at least on time. I’d rather be hungry than late to a meeting with a judge.)

The brown bag lunch program is the County Bar Association’s latest effort to provide its members with more opportunities to sit down for informal discussions with the members of the local bench. First up on the schedule was the Appellate Division, Third Department’s Michael Lynch, a distinguished jurist who served on the trial bench for 9 years before being elevated to the Third Department in 2014. I’ve appeared before Judge Lynch on a number of occasions, both while he was sitting at Supreme Court and now on the Third Department. He has always been very contemplative and easily able to distill complex cases to pinpoint the issues on which the case will turn. But what was so easy to see while sitting at the lunch table with him, his wife, his son, and about 15 other local attorneys was how welcoming he is and how much he enjoys engaging with the bar.

Our conversation, which was a great question and answer session with the Judge, touched on a number of topics, including the value of oral argument, the Judge’s own experience in appellate arguments, and a judge’s role in settlement talks, among many other things. Here’s a brief recap of what Judge Lynch had to say.

The Value of Oral Argument

Judge Lynch noted that he and the rest of his colleagues at the Third Department have noticed more and more attorneys waiving oral argument on their appeals and submitting the cases on the briefs. That is a big mistake, Judge Lynch cautioned. Don’t waive oral argument, ever. The arguments, the Judge noted, aren’t just for you to plead your case to the Court. They are a valuable opportunity for the Judges to clarify issues they are having with the cases with the attorneys who know the cases best. Without oral argument, that valuable opportunity is missed, and the Court is left to sort out the issues on its own.

For as much as it is said that oral argument has little impact on how cases are actually decided, Judge Lynch certainly indicated that it still plays a big role for him. And I actually think that’s generally true. Oral argument is your chance to have a conversation with the Judges and either bring them comfort that what the trial court did was right or show them how it was wrong. It’s at oral argument where you can get a sense of the issues that are troubling the Judges, and use your time to show how the case should come out in your client’s favor. That’s a valuable opportunity. Don’t give it up.

It’s OK to Admit You Don’t Know

Judge Lynch also made a point to tell us that if you don’t know the answer to a question during oral argument, it’s OK to admit when you don’t know the answer. As an example, Judge Lynch told a story when he inherited a Voting Rights Act case while he was the Albany County Attorney and was arguing a Rooker-Feldman issue in the Second Circuit. The first question from the panel was whether then-County Attorney Lynch was aware of a case that had been argued (not decided) earlier that week in the Supreme Court on the Rooker-Feldman doctrine. Honestly, he said, he had never heard of it, so he admitted to the panel that he wasn’t. It happens to everyone, he said, and the arguments go on, so you can’t let it throw you off.

Judge Lynch also told us that while it’s important to have a command of your record, the Court doesn’t expect you to know exact pages where things are located, except for possibly the crucial piece of evidence or issue in the case. But when you show the Court you have a command of the record, it is impressive, Judge Lynch said.

A Judge’s Role in Facilitating Settlements

Judges have a lot of different styles when it comes to settling cases. Some are more pushy than others, and Judge Lynch said that he viewed his role, when he was a trial judge, as helping to facilitate the settlement, but allowing the parties to go to trial even in cases that should have settled beforehand. For example, Judge Lynch had a trial where the parties were only $2,000 apart on the morning of the trial. Likely because of attorney animosity, the parties wouldn’t budge. So, instead of holding them hostage in chambers and forcing the parties to make up the difference, Judge Lynch let them go out, pick a jury, and present the plaintiff’s case. Afterwards, the plaintiff came back and accepted the defendant’s lower offer to settle. Every party has the right to go to trial, Judge Lynch said, and he didn’t think it was his role to force a settlement before trial.

Overall, it was a fantastic event put on by the Albany County Bar Association. Many thanks to the ACBA and especially to Judge Lynch for taking the time out to have lunch with us and share his many valuable insights. Next time, I promise I’ll leave enough time to grab my lunch.

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