Dos and Don’ts in the 9th Circuit

Earlier this week, members of the Orange County Bar Association’s Appellate Law Section were visited by two 9th U.S. Circuit Court of Appeals judges and a district judge who is currently sitting by designation on the Court of Appeals. With no circuit court judge chambered in Orange County since 2008, such face-to-face opportunities are infrequent. In addition to interesting personal tidbits, Circuit Judges Consuelo (“Connie”) M. Callahan and Sandra S. Ikuta and District Judge David A. Faber from Southern District of West Virginia shared valuable advice for attorneys practicing in the 9th Circuit.

As Judge Callahan pointed out, poor advocacy does not lose a case. But poor advocacy frustrates judges and their law clerks because it creates more work for the court to get to the right result. Additionally, substandard representation can destroy an attorney’s credibility. Unless you are unconcerned with the prospect of drawing the ire of judges or developing a reputation of untrustworthiness, take note of the following practice pointers.

Don’t overlook jurisdiction. The 9th Circuit, like all Article III courts, is a court of limited jurisdiction. This is basic constitutional law, yet parties occasionally overlook the issue. For example, parties sometimes fail to address whether events that have occurred after the lawsuit began render the case moot. A major problem in this area is that both parties in a case are frequently motivated to win the case on the merits — that is, they both want the 9th Circuit to have jurisdiction. Consequently, the parties often do not give jurisdiction as close a look as they should. All three judges train their law clerks to scrutinize the question of jurisdiction at the outset of reviewing a case.

Know when authority is mandatory and when it is merely persuasive. In our state court system, Court of Appeal decisions are not binding on other appellate courts (even within the same district and the same division). In contrast, a decision by a panel of the 9th Circuit is binding in all future cases in the circuit. Even though circuit panels are powerless to overturn such binding precedent, advocates frequently ask panels to do just that. Stop making that request. Instead, seek to have your matter initially heard, or reheard, en banc. But keep in mind that roughly two percent of petitions for rehearing en banc are granted, and none of the judges could recall the last time (if ever) they saw a petition to initially hear a case en banc (bypassing the normal three-judge panel review).

Brief writing: Act as a teacher and don’t hide the ball. Briefs should be short and crisp, and get right to the heart of the case. The best briefs are authored more as if from a teacher than an advocate. Take the reader by the hand, and lay out the story and the law in an (almost) impartial way. Guard against the tendency for comprehensive knowledge of the case to inhibit the communication of your client’s story to a panel of judges who know nothing about it. If you try to hide the ball by omitting bad facts or important procedural history, you will lose credibility. State all relevant facts and then, in the argument section, make your point.

The judges shared some of their other brief writing pet peeves:

• Disrespecting the lower court or the opposing party.

• Failing to cite and apply the applicable standard of review.

• Providing indecipherable citations to the record. (Using hyperbole to convey the level of vexation this causes, Judge Callahan said that while some of her law clerks may personally oppose the death penalty, they would not hesitate to make an exception for attorneys who do not include meaningful citations to the record in their appellate briefs.)

• Overusing dates. (The inclusion of a date signals that the date bears significance. Exercise judgment in including only pertinent dates.)

Although it’s good to know judges’ preferences, sometimes one judge’s pet peeve is another judge’s preferred style. For example, while Judge Ikuta could do without the introduction section of an appellate brief, Judge Callahan finds it useful to refresh her understanding of the case by reading the introduction just before taking the bench at the oral argument.

Include an appendix to your brief only for material that is both critical to the appeal and not readily available. According to Judge Ikuta, the good thing about appendices is the pleasant surprise that comes when the reader gets to the appendix, discovering that the brief is 30 pages shorter than otherwise thought! Although certainly stated at least partially in jest, Judge Ikuta’s comment underscores the desirability of keeping a brief as short as possible. Nevertheless, all of the judges agreed that they may find a brief to be more helpful if it has an appendix which provides, for example, a local ordinance or a historical policy manual that supplies the bridge between two regulatory interpretations.

FRAP 28(j) letters are for new, not newly discovered, authorities. Federal Rule of Appellate Procedure 28(j) authorizes a party to promptly advise the Court of Appeals of pertinent and significant authorities that come to the party’s attention after the party’s brief has been filed. Such letters are not for citing precedent an attorney failed to locate while preparing the merits briefing. Such a letter is also not a supplemental brief — don’t turn your 28(j) letter into argument. The letter may be particularly helpful if the new authority is a state court decision (where state law is relevant to the dispute), as circuit judges tend to have less familiarity with state court decisions, or a decision by a sister circuit.

Don’t minimize the role of oral argument in the 9th Circuit. State appellate experts, including Court of Appeal justices, frequently comment on the minor role oral argument plays in the decision-making process. However, for two reasons, oral argument has greater significance in the 9th Circuit than in the California Court of Appeal. First, unlike in state court where all parties have a right to oral argument, 9th Circuit oral argument is given only when at least one judge on the panel believes it would be helpful to the decisional process. Second, unlike in state court, a draft opinion has not already been circulated among the panel members before oral argument. An advocate arguing an appeal in the 9th Circuit is thus better positioned to shape the views of panel members.

Recognizing the potential opportunity presented by oral argument, advocates should come ready to make a good impression. In addition to knowing their case inside and out, attorneys should dress appropriately. Don’t allow your appearance to be a distraction for the judges. Although the customary opening, “May it please the Court” is not required, Judge Ikuta instructs advocates not to refer to the judges as “you guys.” An advocate should begin by stating her or his name — a simple, but often overlooked, concept.

Petitions for panel rehearing and petitions for rehearing en banc are different. A petition for panel rehearing is directed to the very panel that decided your case. Don’t regurgitate the same arguments already made. The petition should be filed to point out only an important factual error in the opinion or something contrary to the law relied upon by the three-judge panel. In contrast, the audience for a petition for rehearing en banc is all the other judges in the circuit, and the 29 active-service circuit judges in particular. The goal is to convince off-panel judges that the panel’s decision creates an intra-circuit split or some other “sky-is-falling” scenario.

It’s impossible to enumerate all the do’s and don’ts of federal appellate practice. For when there may not be a clear-cut answer, Judge Callahan suggests advocates emulate successful appellate attorneys. As a guiding question, ask yourself: “Would Paul Clement or Seth Waxman do that?”

As the judges wrapped up their discussion, Judge Callahan answered questions concerning the current congressional proposals to split the 9th Circuit into two or even possibly three circuits, and she did not hold back in expressing her disfavor of those proposals. Judge Callahan called the latest proposals, like those in years past, a “knee-jerk reaction” from politicians who are unhappy with a particular decision. She warned against an approach where the system is changed every time someone, or even a group, dislikes a judicial decision. Judge Callahan also spoke of the unworkability of a split. Even though there are nine states (plus some Pacific Island territories) in the circuit, California supplies approximately 70 percent of the case load. This makes California, as Judge Callahan put it, “the elephant in the room.” Under one proposal, California and Hawaii would be paired in a new circuit, with California supplying roughly 96 percent of the case load. Such a circuit makeup would effectively create a second “Supreme Court” of the State of California. A split would also increase costs, and Judge Callahan expressed her doubt that Congress would provide the funding and judgeships necessitated by a split.