Poll of 9th Circuit judges identifies how lawyers can better serve the court
Wednesday, October 24, 2018
By Daniel Donovan and John Rhodes
Earlier this year, the Ninth Circuit Clerk’s Office conducted an informal survey by email of Ninth Circuit Court of Appeals judges. The judges were requested to identify various ways in which lawyers can better serve the Court. The results of the survey were published in July at the annual Ninth Circuit Judicial Conference held in Anaheim, California. We summarize the results here.
To no surprise, the judges recommended that all briefs be shorter. The Court expects that briefs be concise and focused. Thoughtful organization is paramount. Lawyers should omit irrelevant or less important facts and issues from their briefs. Brevity, clarity, and honesty favorably impress judges.
In addition to limiting issues, the judges suggested that lawyers concede issues, where appropriate, or attempt to resolve them, if possible. Lawyers are reminded that they should not ignore weak points but instead must acknowledge and address even the weakest points. When citing the record and caselaw, lawyers should ensure accuracy and truth. Erroneous, or omitted, citations damage credibility.
As to the structure of briefs, the primary goal should be a well-organized brief. Lawyers should provide context to the brief up front. The appropriate standard(s) of review should be applied throughout the brief. Prior to filing, briefs should be carefully edited and reviewed by others. Scrupulous proof-reading is the final task before filing.
Oral argument do's, don'ts
In response to this survey, the judges provided several do’s and don’ts for oral argument. First and foremost, address, rather than avoid, your weaknesses. Second, lawyers must anticipate hard questions from the panel. Third, lawyers should directly answer the judges’ questions. Do not delay answering questions and do not reframe questions. Finally, lawyers need to realize that there is no need to use all your time unless you have something useful to say.
As to demeanor, behavior and attitude, the Ninth Circuit judges expect and demand that lawyers conduct themselves with civility. The following rules of civility should be followed in all courts:
1. Do not make personal attacks on counsel, parties, or the District Court.
2. Be courteous to and about everyone involved.
3. Do not be snarky.
4.Avoid excess litigiousness.
5. Request sanctions only in the rare situation where they are truly warranted by the conduct of the opposing party or counsel (emphasis by the Court).
6. Do not take issue with trivial errors.
Our objective, as lawyers, is to prevail for our clients. While the above suggestions concern how we can better serve the Court, honoring them will make us better advocates.
Daniel Donovan is a criminal defense lawyer in Great Falls and currently serves as a Ninth Circuit Appellate Lawyer Representative. John Rhodes serves as an Assistant Federal Defender for the District of Montana in Missoula.