So it’s been a while, but I have been travelling. First to DC for the AAAL conference, then Paris for vacation – and yes, I was there for the shootings.
First, DC. The conference was excellent. It’s always nice to visit the Supreme Court and have dinner in the hall. CJ Roberts gave a nice presentation of our award to Justice Kennedy, who gave a lovely, short off-the-cuff speech. Justices Kagan, Sotomayor and Alito wandered about at cocktail time, and a good time was had by all.
During the conference, we had our usual round of tips from the judges, this time from the DC, 4th and Federal circuits. I will summarize:
- Keep your language simple. Given time constraints, they buzz through briefs, and you need to do what you can road mapping and making the text easy-to-read. These judges noted that they have perhaps 1-2 hours to read a brief.
- Argue as narrowly as possible. When you are dealing with a three-panel panel (i.e, most federal circuit arguments), one vote means nothing. The three judges also have no idea what the others are thinking about the appeal before the argument occurs. So you need to help the one potential judge supporting you and make him/her your champion. One panelist said she spent 20% of her time thinking about how to lawyer the other judges to get them to the result she wanted.
- Be clear about what you want and the legal rule you are espousing. The judges are always thinking in terms of what the opinion will look like and its impact.
- The summary of argument is important. One judge suggested starting with that when drafting (you can always revise it), because judges focus on it and it should be a priority in your head when crafting the rest of the brief. Other judges have told me that they read this right before the argument.
- As I’ve noted before, the Table of Contents should be a roadmap for the argument. One of the panelists noted that’s what he reads first and he wants to see that map.
- Make the brief self-contained. This is an interesting point and maybe my biggest takeaway. The panelists noted that judges read briefs everywhere – and half of them still print versus using computers – so put the important material in an addendum and minimize cross-references. They might have just your brief as they are reading on a plane, the dentist’s office or wherever. The reply should be stand-alone, too. Some judges read that first. (Some read the district court opinion first; it varies).
- Don’t worry about giving too much credence to the other side.
On to Paris. This has nothing to do with appellate law, but I thought it might be of interest. Yes, I was at a concert and café (on the other side of the Seine) when the shooting happened, the sirens started and everyone got off the street. The museums and big shops then closed for 2½ days, but the little shops and smaller churches were open, and this happened mid-trip, after we had done some of the big stops, so we only missed a few things, like the Christmas market. (It was nice having shopping and spending an act of solidarity!) And the flight home was wide open, after everyone cancelled their flights. If you were planning a trip, then go (after the climate change conference is done). It’s a great time to visit Paris, in the winter, with crowds gone and the people genuinely appreciative. Have a chocolat viennois and live your life.
I am attaching a couple of photos. The first is the Rose Window in Notre Dame with the lights of the French flag. (Photo1)
The second is a group we saw on the bridge to the Isle St. Louis, playing le jazz hot. The sign in the open guitar case reads: “Paris n’a pas peur.” – we are not afraid. (Photo2)