Well, we were on a little hiatus, off on vacation and conferences for the last few weeks. The Courts haven't been on vacation, however, and, in a bit, we will be discussing what they've been doing while I was frolicking in the surf.
But first, last week I was in Boston at the DRI's appellate advocacy seminar, so here's a brief synopsis of useful points gathered (other than the only place for decent cell phone reception at the Hyatt Cambridge appears to be on the 16th floor).
DRI always has good conferences and this was no exception. The appellate conference is every 18 months and always has a moot court session in which two appellate lawyers argue a pending Supreme Court case in front of a panel of judges, which then deconstructs the argument. I was asked to argue the plaintiff-petitioner side in the chosen case (Kurns v. Rairoad Friction Prods. Corp.). Unhappily, the Supreme Court recently issued its decision against my position 9-0 (6-3 in a partial dissent), so preparing was a bit of a challenge. Happily, my DRI panel (CJ Lynch of the First Circuit, Judge Hall from the Second Circuit and CJ Steele of the Delaware Supreme Court) unanimously ruled in my favor (no doubt due to my utterly fabulous argument).
I learn something from every appeal and this mock one was no exception. It was a new experience for me to prepare an argument when I did not participate in the brief writing at all. You don't want to try to throw too much new at a court at the argument stage, so re-framing in that context is an interesting exercise — but with a 9-0 decision some creativity was required.
The most useful part of these sessions, and these conferences in general are the comments from the judges themselves (as one of the moderators noted, the best way to learn to fish would be to ask the fish if you could). So here are some thoughts from the bench:
CJ Lynch said that in oral argument the lawyer should be trying to write the court's opinion. This is something I keep in mind for the brief – I'd like nothing more than to see the written decision be my brief with a signature line of the court below it, and I try to write with this in mind. But I never concentrated on this point at the argument stage. It's certainly tricky to do, given that the primary goal is to answer questions, but her message, an excellent one, goes to how you answer those questions — you need to do so in a way that makes the decision easy to write. For example, she noted that in our argument the other side had articulated the test that it wanted the court to apply in four different ways. he court is going to be focusing on what the test should be, and a clear, consistent articulation is something to keep in mind and be ready for in argument.
A separate session was held with another set of judges on brief writing — Justice Francis Spina from the Mass SJC and Michael Malloy of the Eighth Circuit. Here are some of their comments:
– Judge Malloy noted a law review article by two Eighth Circuit judges who kept count for a year of which arguments made a difference in the ultimate product – not necessary the outcome, but the framing of the issues etc. The answer? – 15-20%. So at the argument stage, the court's mind isn't closed, but it has a pretty good idea where it's going. It's the briefing that matters most.
– Justice Spina noted the SJC's procedure in soliciting amicus briefs. He stated that they receive them in @30% of their cases, and that aside from their regular general call for briefs in cases as printed in the Massachusetts Law Weekly, they will sometimes solicit briefs directly from groups that may have a special interest, e.g., a bar organization. They find these briefs helpful. As I noted previously, the Maine SJC seems to be going in this direction which is, I think a great development. I don't think Maine will (or should) reach the 30% level, because the Mass SJC in many areas has discretion in taking cases, while Maine must take on almost all comers, and many of these appeals do not involve issues with implications outside the specifics of that case.
– On the amici front, it was noted that a survey of U.S. Supreme Court law clerks said that amici briefs were most useful when the issue before the Court was highly technical or complicated, or the statutory framework similarly dense and opaque. Interestingly, they said that they would like to hear from academics with reputations in the relevant field (maybe because the clerks recently were in student- professor relationships?)
– Judge Malloy confirmed my view that the fact section is often the most important part of the brief, saying most cases are resolved by them because the applicable law is usually settled (again, this is in a non-discretionary appeal forum).
– I recently blogged about the last conference I attended in DC, where the judge participants noted their interest in working out the real world implications of their rulings – they are writing not just to identify a winner or loser, but to provide guidance to others going forward. This panel underscored this point. Bright lines are a good thing, Judge Malloy said. Indeed, he noted that perhaps one of the weaknesses in the Kurns case at the Supreme Court level was that the Solicitor General was proposing a fact-sensitive conflict preemption test that would have been difficult for the district courts to apply.
- Justice Spina noted the Mass SJC's good relations with the First Circuit – they dine with each other once a year, the First Circuit certifies questions of state law to the SJC, and the SJC will cite CTA1 decisions interpreting Massachusetts law. They want to keep in sync, again, to assure predictability in the law. The judges all know each other personally and have collegial relations. (So don't be shy about citing a First Circuit decision in the SJC.)
- On citations to internet sources, Judge Malloy said do not cite to Wikipedia, it's not reliable. Other sources can be fine – he referenced a Mayo Clinic cite with good infromation about medical conditions. If you do include a web cite, note the date you visited the site.
Back to case reviews in the next entry – the Pike Industries case in particular.