US Supreme Court

  • September 28, 2021

A New Experiment In Oral Arguments

First Circuit, Law Court, Oral Argument, US Supreme Court
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For Supreme Court watchers and appellate practitioners, last week brought an interesting development – the Court is changing how it conducts oral argument.  Arguments will now feature both unstructured questioning by all justices and then uninterrupted questioning by individual justices. It will be fascinating to watch how this new approach affects oral arguments in the Supreme Court, and whether it will trickle down to other federal and state appellate courts.

As highlighted at SCOTUSblog (here) and the Appellate Advocacy Blog (here and here), the new format first gives counsel two minutes of uninterrupted time, and then allows for free-for-all questioning by the justices for the remainder of counsel’s 30 minutes of argument.  That is familiar practice; in a new twist, however, each justice in order of seniority then has the opportunity – after the 30 minutes of time has expired – to question counsel individually.  No strict time limit applies to this new segment

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  • March 22, 2021

All Cleaned Up

Appellate Briefs, First Circuit, Law Court, US Supreme Court
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Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable.  So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets?  One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case.  But there is another option – and it was just endorsed by Justice Thomas last month.

A little bit of background:  As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).”  The proposal has its supporters, including no less than Bryan Garner, but also its critics.  The approach would improve readability, but might become a crutch that encourages appellate lawyers

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  • March 23, 2020

COVID-19 and Appellate Practice

COVID-19, First Circuit, Law Court, Maine, Massachusetts, New Hampshire, Rhode Island, US Supreme Court
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Holed up here in my home office like many of you, I thought it would be a helpful time to take stock of the current state of affairs in the courts of appeal during this pandemic. As with most of life, COVID-19 has disrupted normal operations, leaving all of us in a state of uncertainty. But here is where things currently stand:

In the Supreme Court, the March oral argument session has been cancelled – a highly unusual step, but one that happened previously with the Spanish flu in 1918. The Supreme Court has also issued a standing order extending some deadlines, including the deadline for filing a petition for cert.

The First Circuit, meanwhile, has posted a notice stating that the April 6-9 sitting has been cancelled. No blanket order has yet issued extending deadlines, however. That may change. [UPDATE: The First Circuit has extended deadlines for many filings due

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