What’s new in appellate law?

I am off at the end of the week to a conference of the American Academy of Appellate Lawyers, where I serve on the board.  (http://www.appellateacademy.org/)  Congratulations to the newest Maine member of AAAL, Margaret McGaughey at the U.S. Attorney’s office and Donald Macomber at the Attorney General’s office!  (Now there are four of us – Margaret, Don, Gerry Petrucelli and moi.)

In looking at our schedule, the schedule of a meeting coming up for the ABA’s appellate body (which is more of a bench-bar group and which is open at anyone, unlike AAAL, which has membership criteria and is geared for the more experienced practitioners), and the DRI appellate group’s last meeting (open to all), I thought we might get a feel for what’s doing in the appellate world.

The agenda for the AAAL conference is here.  (AAAL schedule)  It’s a fun meeting because, among other things, we see a Supreme Court argument and have dinner at the Supreme Court with Chief Justice Roberts (an AAAL member) giving an AAAL award to Justice Kennedy.  We have a DC meeting and see an argument every 5 years or so, so it’s not our typical line-up of topics.

The agenda for the ABA’s conference is here.  ABA Schedule.  DRI’s 2014 program, with PA’s Brooks Magratten participating, is here.  (2014 DRI Schedule)

What trends do I see and observations do I have from these programs?

  • Everyone always likes to talk about oral argument because it’s fun.  Unfortunately there’s less and less of it happening.

  • I see some dichotomy between topics of interest to Supreme Court practitioners and those in the trenches.  Again, everyone wants to talk about the Supreme Court, but in the big scheme of things, most of us spend our time with other appellate tribunals.  So, for example, a discussion of pro se appeals may be important to some folks, while a discussion about how the Solicitor General’s office works has relevance to a different niche.

  • Motion practice at the appellate level is on the agenda for both the ABA and DRI.  

  • Everyone likes to hear from the judges.  This makes eminent sense – if you want to know how to tame a lion, the best source isn’t a lion tamer, but the lion.  The key, if you are not a newbie, is having a good set of judges, optimally from your region, who provide advanced appellate points, as opposed to the important rules that everyone should know (keep it concise, never play fast and loose with the facts, etc.)

  • Technology is always a hot item. 

  • Use of amicus briefs is on the agenda.  While this subject is most relevant to those Supreme Court folks, they can be useful elsewhere, as well.

What do I think is missing?  I have a few ideas.  One is moots.  These are elaborate deals for those Supreme Court folks, but how do we do effective mini-moots less expensively in the trenches?  They are needed more than ever, given the fewer experiences that folks have to argue in the first place.  But we need to do them efficiently given cost considerations. 

Another is, with fewer appeals from courts and agencies, and more use of arbitration, it seems to me that a discussion of appeals from arbitration decisions might be helpful – how to get over that formidable standard of review.  And given the NFL’s pending Second Circuit appeal of the “Deflate-gate” decision, this topic is more important than ever!  Agree?  Any other topics you think should be on the radar screen?  As always, your thoughts and comments are welcome.

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