Appellate law is 'philosophy in action,' Zimmerman says

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."