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Appellate law is 'philosophy in action,' Zimmerman says

Attorney and class adviser Troy Booher begins a session with a group of second-year law students at the University of Utah in August.
Attorney and class adviser Troy Booher begins a session with a group of second-year law students at the University of Utah in August.
Scott G. Winterton, Deseret Morning News

SALT LAKE CITY — Michael Zimmerman, prominent attorney and former chief justice of the Utah Supreme Court, explains the legal process using photos of the construction of the Kearns Building that he's sitting in.

First, there is the framework and that is the law. Then it is up to the trial attorneys to fill in the law with facts and evidence, to build their case the way one builds a building. They are charged with convincing a jury or a judge that the building is a solid building, one that can hold up.

Then, the appellate attorney comes into play. Zimmerman's new law firm is Utah's first dedicated solely to appeals cases.

"Our job is to either hold that picture together and to say that the facts do fit the framework or to say no, the facts don't fit the framework at all," Zimmerman explained. "In fact, the facade built doesn't have any framework in it at all. It would fall down, so it should be reversed or modified somehow."

It's not just a good analogy, though. The Kearns Building is 100 years old, having been built in 1911. There have been renovations and restorations, but the building is sound and striking.

When appellate attorneys can hold up or tear down a decision in a thorough and decisive way and their stance can be seen and supported and, sometimes, adopted by the state's appeals courts, it becomes part of the state's legal framework. It sets a precedent that can be used for future cases.

"That's the best-case scenario for an appellate judge is that they have clear guidance from both parties so they can figure out how to apply not just the law in this case, but how to apply it consistently so everyone at the trial court level and everyone going forward understands application of the law," said Linda Jones, one of Zimmerman's two law partners at the firm of Zimmerman Jones Booher.

Jones noted that a case she worked on that was memorable for her was the state of Utah v. Cameron Thomas Lopes. Interestingly, the 1999 ruling was written by then-Justice Michael Zimmerman. That ruling changed the way the gang enhancement statute was interpreted, as it determined that the enhancement created a "new and separate offense" that Utah law required to be proven beyond a reasonable doubt.

"It was a great opinion," Jones said. "Just a couple of years later, the U.S. Supreme Court came to the same decision in a similar situation."

Troy Booher, the firm's third partner, pointed to a case he worked on involving a murder conviction that was overturned in the Utah Supreme Court and spoke to the reliability of eyewitness testimony. Zimmerman cited a case he handled that reinforced the $1 million cap on medical malpractice claims.

The law firm, which focuses solely on appeals and has been lauded as a "dream team" of appellate attorneys, opened shop Aug. 1, but Booher summed up how business has been in one word: "Busy."

"It's been great so far," he said. "We've been busy and we continue to be busy, and it looks like we're going to be busy for a while. Work has come in the door and the market's been pretty creative in how they're using us."

They set up their office in a way that Zimmerman described as a "seminar," allowing the attorneys to bounce ideas off one another and focus on the challenges and innovation crafting an appeal can require.

"That's what we wanted," Jones said. "An ideal environment, a comfortable environment. … There's a lot of procedural nuances in appeals and that's where the specialty comes into play."

A veteran of criminal law, Jones recently joined Zimmerman as Utah's only members of the American Academy of Appellate Lawyers.

To gain membership to that group — which has a cap of 500, but has yet to reach that number — an attorney must have at least 15 years' experience, be nominated by two members and undergo a vetting process that is so thorough that it involves reading through court briefs the attorneys have filed. Once the process is complete, the attorney is elected into the academy.

Booher has a Ph.D. in philosophy in addition to his law degree and always planned to teach. But Zimmerman said Booher has been the most appellate-oriented, going straight into appeals after obtaining his law degree.

"I like doing everything, bankruptcy, auto accident appeals, … water rights cases, just anything," Booher said, noting how attorneys have to know various types of laws. "Appellate judges are generalists. You don't get a new panel because it's this kind of case."

But Zimmerman said the connection between appellate law and philosophy isn't as extended as it may seem.

"You could say that the appellate level is basically philosophy in action," he said. "It's social philosophy, political philosophy, legal philosophy as the rubber meets the road."


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