Guest Vickie L. Henry, MA Appeals Court Judge!
WBCA Podcasts
Discovering The Law
(upbeat music) - Welcome to Discovering the Law. My name is Lucy Rivera. And today we have a very special guest. We have the honorable Vicki Henry, one of the Massachusetts appeals court judges. John Henry, we are honored to have you. Thank you for coming today. - Well, thank you for having me with you. And Judge Henry, please tell us, why did you want to be a judge? - So after law school, I, like many people, tried to get a clerkship with a judge. And I did, I clerked for the Vermont Supreme Court for a year, for the honorable Denise Johnson. And it's just a wonderful opportunity for someone fresh out of law school. You bring youth and energy and willingness to work hard to the judge. And then you get training and experience. And you get to be a neutral. You get to be behind the scenes and see how judges think. And from the minute I had that experience, I always had in my mind that it would be a wonderful opportunity if I were ever lucky enough to be a judge. And so I always kept that in mind as I was making career choices and decisions. Because it, to be on the side of justice is just such a privilege. - And privilege and an important impactful decision. - Yes, yes. Judge Henry, how was your path to become a judge? What did you have to do? - So after I finished my clerkship, the economy had been terrible back then. And so I ended up with a job out in California, which was really wonderful. And I worked out there for about a year and a half. Then I moved back to Boston. I had gone to law school in Boston. And worked for a law firm here called Foley Hoag for I ended up there about 15 or 16 years. I did all kinds of litigation, but I, you know, disputes between businesses, personal injury, if somebody was hurt by a product, for example, patent litigation, trade secret litigation. And even was lucky the firm would send people to do criminal work for about four months in the Norfolk District Attorney's office. So I got some trial experience in doing some criminal work. I was very happy they're doing that work. And I got a call one day from a civil rights organization called Gay and Lesbian Advocates and Defenders, or GLAD. They're now rebranded as GLBT. Cue legal advocates and defenders, still GLAD. And they were looking for someone with litigation experience. So I decided I would change my practice very considerably and go do civil rights litigation, which I did for about five years. Then I applied to join the appeals court. - Well, I see how all this experience made you who you are. And I think with this breadth of experience brings all this wisdom to the precision that you now hold so important and impactful in Massachusetts. Your Honor, why did you want to preside in the appeals court precisely? - Well, I had to admit, I really do enjoy the law. And I like all areas of law. And that's one of the wonderful things about being in the appeals court. We hear every kind of state case other than first degree murder. Those go directly to the Supreme Judicial Court. We're an intermediate appeals court. And the highest court in Massachusetts is the Supreme Judicial Court. And then we have seven trial courts. And if you're not happy with what happens in the trial court, you have one automatic appeal that you can file, then that's to go to our court. So we're the court of last resort for the overwhelming number of cases, well over 95% of cases probably. And I love the variety and I love the challenge of learning all these areas of law. - How are the other ways to get to the appeals court? - Well, so usually people are filing an appeal, particularly because their case ended like they had a jury trial or maybe they pled guilty. And then they want to withdraw their guilty plea or they don't like how the jury ruled or they think the judge made a mistake. And so they're coming to our court to say something went wrong, that there was some sort of error and they want us to look at the record and look at their arguments and see if we agree or we can affirm, we can say everything was fine or at least if there was a mistake, maybe it didn't harm justice. Or we might say that we agreed that something did go wrong and it has to be to go back to the trial court. Or we can sometimes rule some part way, affirm, impart and reverse impart. So say, you know, maybe there was an error but it only affected part of the case. - So today for our guests, we are learning about the appeal scored from Judge Henry and we are learning also about her life and how she got to be a judge of the appeal scored. Judge Henry. - I just wanted to add, so people, if they're in the middle of a case, sometimes they think that the judge made a mistake and they can sometimes get a review before their cases finalize. That is usually an appeal to a single justice of one of us out of the 25 of us would then hear that matter and decide if maybe something needs to be different or maybe we could ask for some more information from the trial court judge and make a ruling at that time. - Oh, okay, I'd like to come back and visit that how the appeal scored, go about deciding the case, but I want to ask you something important. How has the appeal scored been handling COVID and the hearings, how are they handling the hearings during this crazy period of pandemic? - Well, we like everyone else have been evolving and actually I'm very proud of the appeal scored because we really jumped out front with technology and we were talking about this at the court in early March that we really needed to be ready to deal with what might be coming with the pandemic. So for April of 2020, we heard arguments by telephone and then by May we were up and running with the Zoom platform and had produced even a whole manual and we were providing information to other courts about things that they could do. So I was really thrilled with how quickly we were able to react. We have our own YouTube channel now. So if you go on YouTube, you can search for the Massachusetts Appeals Court and our arguments are all set by date and you can see that we've got some videos that are very popular for whatever reason, sometimes 'cause there was a blooper, but also because sometimes it's a particularly interesting case and we've had people watch from all over the world, which I just think is fascinating and an unexpected plus of the pandemic is that people can see what our court system looks like and how we do things, which I think is very exciting. We were able to go back into the courtroom for a long time. We were, of course, masked and many of the lawyers who were arguing to us were wearing masks now. People do what is comfortable for them. We did have to go back remote again in January and February, I think it was, but we're back live now. So, and we try for that. We are working, actually, our clerk's office again, has really just been working so hard and they've been working on hybrid options so that maybe some people are in the courtroom and some people are not. So, I was part of the second hybrid option, a hybrid experiment at the appeals court because I was supposed to sit on June 6th and I had a known exposure to COVID on June 5th. And so, I was at home in my home office, which is also my bedroom, and wearing a suit, of course, or wearing my robe, and my colleagues were in the courtroom and there was a monitor where I normally would have been, and then the lawyers were live and they argued and it went seamlessly. So, we're working on that and working on being able to just even stream the arguments that are happening in our courtroom. So, there's public access so people can see what we're doing. - It's really refreshing how that no matter what world the society can keep on working with technology these days and the court can keep functioning regardless of the spite. - Yes, we've all tried very hard to, the pandemic's been hard on people and we try to make sure, well, we do make sure the lawyers come into the Zoom and if they've had a little glitch with the technology, we slow things down, we let them catch their breath and kind of calm down so that they're really ready to focus on their argument. One time when I was the senior judge, somebody just disappeared out of a Zoom. I presume they either had a child's spouse or dog issue, but maybe their internet died. I had wild turkeys in my driveway one day and my dog was going crazy over that. So, we just wait, we pause and we tell people, we'll give them more time because we're just trying to help everybody make their best argument to us so that we can focus on the substance of the case. - And by the way, Your Honor, there are some web pages that you brought if we can put them up. - Sure. - Yes, so people like to have access to the court. So, there are a couple of places that they can look, one of them is m-a-appelit-courts, that's c-o-u-r-t-s.org, and if you go to that website, you can look up our cases by party name. If you happen to have the docket number, you can look up by docket number, but you can also access easily our public calendar there and the public calendar for the Supreme Judicial Court. So, that helps people who want to access our materials. You don't have to make a formal request, you can just go and get the publicly accessible materials. We, as I said, we also have the live streams, you can also just go to the Massachusetts Appeals Court website to get some of our information as well. - Your Honor, thank you for sharing this with us. This will be very helpful for all our audience and the public to learn about the appeals court. So, does the appeal court provide services for people who may not be represented otherwise or don't have an attorney? What would they do? - So, we have tried very hard to demystify the court system, which is a challenge because sometimes things are complicated, but we've tried very hard to make things more understandable. And again, our clerk's office and many committees of judges have worked on these things. So, we've tried to make the rules about what your brief should look like and what information you're supposed to provide us. We've tried to make that more understandable. We allow electronic filing so you don't actually have to come into our office. And that is, we will file electronically documents in all kinds of cases, which I think is not true in all courts. And so, that's been very exciting for people who wanna appear before us. We have forms on our websites to help people so that they know what they're supposed to tell us, like what information we might need to decide their case, like let's say that they're being evicted and they are trying to stay in their rental unit, then they need to provide us with some information so that we can decide their case. We've also been working on our forms, again, to make those simple, but also to have them available in different languages, which I'm very excited about. And then, we're trying to leverage technology so we've partnered with the Suffolk University Law School Litigation, their Legal Innovation and Technology Lab. And so, basically, they have technology interview people and they type in answers to the questions and then it helps generate forms for them. And I know, for example, that they've been working on that and, again, in the housing court cases, those sort of thing where a tenant often is not represented by an attorney. So we can't provide legal representation, but we try to provide the resources so that people can represent themselves. And we've had some very terrific arguments made by people who don't have attorneys, so they come in and they know the facts of their case and they have studied upon the law and made their arguments to us. - And this is terribly important that you're here to let everyone know that there is access to justice, even at that level of the appeal score. So, your honor, that brings to, well, begs the question, what happens if a case doesn't go the way that the people who come in want and they want to appeal it? - Right. So we have seven different trial courts here in Massachusetts, so the Superior Court, the District Court, the Boston Municipal Court, Probate and Family Court, Juvenile Court, Housing Court, and Land Court. So if you're not happy with what happened there, then you can file what's called the Notice of Appeal and it will come to our, you file it with the trial court and then it starts a process rolling where you start to assemble the materials that we need to review the case and then you have a chance to write up your argument, which is called a brief, although they're usually not short. And you make your argument for why we should have a different result. And then, you know, once that, everybody's had a chance to write up their arguments and pull together the documents, we might need to see them. We schedule some cases for our argument, some cases are just scheduled for consideration without argument. And then it's typically assigned to a three-judge panel. Those judges are randomly assigned. The law requires that we, you know, we don't say, oh, this person's my judge is my favorite. I want to sit with that person. We're randomly assigned to have as much change as possible so that it's mixed up and people get to appear before different judges. - And your Honor, for example, can the decision for the three appeal for judges be revised or appealed? - Yes, so if you're not happy with us, you can ask the Supreme Judicial Court to take your case. That's called Further Appellate Review. And it's a separate process. They don't take that many of our cases, really. I think it's in the neighborhood of like two to four percent of our cases, but it is an opportunity. And they do sometimes take our cases. And a lot of times they say that we got it right and every now and again, they say that they don't agree with us. - So, Your Honor, how is the process when there are three judges in a panel and they want to, how do they go about the citing? What if the three of them do not agree or how would be the process there, the dynamic? - So on a given day, it's say that we're going to hear argument will usually hear six cases. And so we have a presumptive order. In other words, like we'll divide up those cases. So presumably each of us will be writing two of those cases. And again, we do that randomly. It changes every month. So we all read all of the materials for all of the cases, but you know, and if you're interested in an issue or you find it confusing, maybe you'll do some extra research ahead of time, but we're very prepared for argument. We tell people that all the time, but I've been very impressed with how much work my colleagues do. And so of course you want to look good too. So you'd also do a lot of hard work beforehand. And sometimes you basically come up with a bunch of questions. And so then you want to ask those questions of the lawyers. And you'll do research and you'll look at prior decisions that involve similar facts. And so after we hear the argument, we go back and we conference, we call that Assemble, S-E-M-B-L-E. But we go back and we conference the case and we talk about how we think it should come out. If we all agree, then the person who's presumptively going to write that case will write it up. But if we don't, then we vote and we decide who has the majority votes. In other words, who's got two votes and who is the odd person out. And so then the two write up a majority decision and the other person writes up a dissent. If that happens in our court, we have two kinds of decisions. One is a published decision. And those are usually if we haven't written about a topic for a while or if you have a dissent, those all have to be published. If we think there's some new element that we're adding, some new information we're adding, then we would publish those cases. The other kinds of cases are what are called unpublished cases. Those are more of a memo to the parties because we get somewhere between 1,400 and 1,600 cases a year. It would be overwhelming if we publish all our cases. And so anything that's published is reviewed by all 25 judges on the court and we vote on that. And they have to have a majority of the judges' votes or it can't go out as published. If the dissent gets the most of the judges, then they will take over as the majority and we add two judges to the panel who will vote with that judge and it'll go out as a five judge decision split three to two. - It sounds extremely fair and fascinating. Right now, I believe we only have a few minutes left, but this episode can be viewed at www.discoveringthelaw.com. I'd also add the VNN studio's website. My name is Attorney Lucie Rivera and today with me is Honorable Judge Henry, the Justice of the Appeals Court of Massachusetts. And Your Honor, we do have, I think, a couple of minutes and what would you like to share with us about the appeals court? - Well, I think that people want... I think that it's important for people to explain, to pursue their legal rights. I think that's very important. But we do try very hard to disagree agreeably, right? And to find, if you can avoid litigation, I think that's often the best course for people. So you try to work things out, you try to negotiate. But if you can't, then you can go to court and you can ask a judge to enforce your legal rights. And we do try to make the law accessible and understandable and you can do your own free legal research. All of our cases are published at masscases.com, M-A-S-S, and then the word cases, C-A-S-E-S.com. And you can look at all our court decisions and the Supreme Judicial Court's decisions and kind of get a sense for what we're looking for, what we think is important. But you have to bring your lawsuit or your claim and there are time limits on that. So I encourage people to make sure that they are protecting their interests. - Thank you, Your Honor. And for all of us that we're here today listening to Judge Henry and watching Judge Henry's interview, thank you for watching. My name is Attorney Lucy Rivera and Judge Henry and I really thank you for your time and for the opportunity. Thank you for watching. (upbeat music)