The Appellate Wanderer Raffi Melkonian

This time, I'm honored to speak with #AppellateTwitter international stalwart, Judge Mikael Swahn, of the Svea Court of Appeal in Stockholm, Sweden. Judge Swahn is my first European guest, and was able to tell me in great detail about the Swedish system. Most remarkable, Sweden allows for full plenary review of all judgments in the intermediate courts of appeals, and includes lay judges at both the trial court and the court of appeals. We also discuss legal education in Sweden (where I stick my foot in my mouth!), Judge Swahn's path to being a judge, the difficulties in recruiting judges in Sweden, and the fact that in the Sweden, many parties litigate pro se.



Thank you for joining me again on The Appellate Wanderer!

In this third episode of The Appellate Wanderer, I talk to Andrew Bernstein, a partner at Torys who practices appeal and clerked for former Chief Justice Lamer of the Supreme Court of Canada. We had a lovely talk about how Canadian appellate practice differs and is similar to that of its cousin in the United States.



We speak about Andrew's "origin story" to law school from his "mistake" of starting a commerce undergraduate program. Then we moved to Canadian legal education (6:30); Andrew's LLM at the University of California, Berkeley (7:42); the extraordinary fact that the Supreme Court of Canada is functionally bilingual! (9:50); we discuss the hierarchy and structure of the Canadian courts (12:35); moved to appealing to the Canadian Supreme Court by leave (15:40); we talk about how you can possibly have a Supreme Court of Canada ruling on Quebec law (18:10); we talk about how the Court can sit in panels of 5, 7, and 9 (19:25); then we move to Andrew's recent oral argument in the Canadian Supreme Court and his preparation process and his "spiel" (22:44); we talk about the mooting process for Canada (27:55); we talk about the written work product in the Supreme Court and factums (29:55); we talk about what happens in conference in the Canadian Supreme Court, including a possible conference in advance (31:55); we talk about how the law clerks do their work (35:30); "Horse trading happens on the second floor" (38:10); what comments look like from other justice (39:15); bench memos (40:55); how law clerks are not involved in leave applications (42:30); how Supreme Court of Canada justice are appointed and how judicial politics differs from the US (44:02); in what ways the Canadian Supreme Court does look to SCOTUS (50:10); and then what Canada does really well as an appellate legal system (53:10).



As always, please send me suggestions for new guests, and rate and review the show!

In this episode I talk about the extraordinary legal system of South Africa with Jason Mitchell, an experienced South African advocate. We discuss the South African legal system and Jason's experience at an American law school. We then move to discuss the fact that South Africa offers a split legal system between "attorneys" and "advocates" (like the solicitors and barristers of the UK system). Then we discuss the South African court hierarchy, including the intermediate court of appeals (the Supreme Court of Appeal) and the apex court (the Constitutional Court of South Africa). We delve into how the Supreme Court of Appeal does its work, and how it is differentiated from the Constitutional Court, consider the constitutional grant of fact-finding to the Supreme Court, and the bases for jurisdiction in the Constitutional Court. We talk about how the Constitutional Court can confirm laws as unconstitutional or constitutional, and then talk a little about South Africa has British style procedure but Dutch-Roman law. We then detail how judges end up on the Constitutional Court, and then dig in on the extremely moving symbolism of the South African Constitutional Court and how it relates to repudiating the apartheid regime. Finally, we discuss how to actually litigate a case in the Constitutional Court and how decisions are made in that Court, including a lot of discussion about oral argument and the skills of top South African advocates.



This is a great episode about a legal system that is both familiar and deeply different. Please send me your feedback at @RMFifthCircuit.

I'm an appellate lawyer in Houston, Texas, at the law firm of Wright, Close & Barger LLP. On twitter, I'm jokingly called the "dean" of #AppellateTwitter. I love to practice appeals. But one dissatisfaction I have about life as a lawyer is how bound we are to our own countries and states. I may have international clients, but that work never takes place overseas, or in a cross-border setting. I'm hired because I know a lot about American appellate procedure. This podcast is my attempt to satisfy my curiosity about how people practice appellate law overseas. My goal is to speak to appellate lawyers and judges in all the great democracies of the world and learn, in granular detail, about appellate life there. I'm doing this to learn: but if y'all listen too, that would be even better.

In my very first episode of The Appellate Wanderer, I speak to Eduardo Romero Tagle, a Mexican lawyer currently practicing in the United States. Eduardo worked for many years as a law clerk and then later as an acting Chief of Staff to a Justice on the Mexican Supreme Court. We go into great detail on how the Mexican Supreme Court actually works: how petitions are brought to the Court, how cases are decided, and even how you go about seeking an ex parte appointment with one of the Ministro (Justices) to talk about your case! We also touch on Mexican legal education, and what kinds of things Eduardo thinks the Mexican legal system does especially well.

Our conversation was eye-opening about the complex and unique legal system of the United States' largest neighbor. I hope you join us for this wonderful and at times funny discussion. And if you have any suggestions for who I can speak to next, I would love for you to reach out to me on twitter @RMFifthCircuit. Let's explore the world of appeals together!