A modest proposal


A few weeks ago, I had a couple of oral arguments at the SJC, and as with every argument, after each, I thought of a more responsive answer for one of the questions asked – because I had time to think about what the Justice was looking for.  They weren't earth-shattering issues decisive to the appeals, and this phenomenon isn't a new or startling event - I can't think of an argument when I couldn't've answered at least one question better after a little time to reflect about what the Court was looking for.  

Which got me to thinking about 28(j) letters.  These are letters, of no more than 350 words, filed under FRAP 28(j) obstensibly to draw the Court's attention to authority issued after oral argument.  They can be abused, by people who go searching for some tangentially relevant post-argument decision basically to file a new little brief saying nothing new, and precipitating an equally superfluous response from the other side. 

On the other hand, Chief Judge Lynch has used this mechanism not precisely as the rule is designed for, when she asks a question at oral argument and the party doesn't have the answer.  Upon occasion, she will tell (or the party can ask) to file a short letter with the Court providing the answer.  This expansive use of 28(j)'s is I think a very good thing, because, after all, the purpose of an oral argument is to answer the Court's questions.

 So what about having an automatic opportunity for a post-argument letter to get that better answer in?

Obviously, the last thing the Court probably wants is another brief, and they usually confer right after the argument, and don't want monkey wrenches thrown in down the pike.  But what if we made it very simple?  Everyone had 48 hours from the date of the argument (to give them time to listen to the argument if they wanted) to file, simultaneously, with no response (or sequentially, with another 48 hour period) to file a letter, no more than 350 words, more fully responding to any question asked by the panel at the argument?

It doesn't seem to me that this would create a lot of new work for anyone (the clerk could just circulate the letter and there wouldn't be any reason to re-confer).  It would focus on the purpose of the argument – answering the Court's questions.  And it would give us the piece of mind of getting that more responsive answer in.

Like any other rule, I'm sure lawyers would attempt ways to abuse it.  But they would only get 350 words – it's one little letter.  And maybe it would even reduce the current abuse of 28(j)'s by acknowledging what some people are doing – not really providing supplemental authority – but trying to get in a last word after the argument.  Yes, nothing would stop further 28(j) filings for actual relevant supplemental authority, so there could always be abuse of that avenue as now, but maybe giving people that last little window would give them some closure, so they wouldn't feel the need to find an excuse to file a 28(j) based on some tangential authority that wastes more of the judges and clerk's time.

As oral argument times get shorter and shorter, maybe this would be one way to make the best use of the time we do have - having identified in the argument the areas of the court's interest, one will of course do their best to answer at that time – but this post-argument letter would allow the parties he option of providing a more fulsome response to whatever question they chose, in a little letter filed rapidly thereafter.