On Monday, February 11, 2013, the visiting panel of Ninth Circuit judges in town for oral arguments addressed members of the Hawaii State Bar Association. The event, entitled "Appellate Practice Tips," was hosted by the Federal Bar Association. The panel members were the Honorable Susan P. Graber, the Honorable Jay S. Bybee and the Honorable Morgan Christen. The Honorable Richard R. Clifton, based in Honolulu, moderated the discussion.
Judge Graber has been sitting on the Ninth Circuit for fifteen years. She stressed the importance of the appellate brief. If a choice has to be made between spending time preparing for oral argument and writing a brief, Judge Graber recommends devoting time to the brief. Further, the advocate should pare down the issues and focus the court on the most important issues. Finally, Judge Graber advised by scrupulously honest about the strengths and weaknesses of your case, the facts and the law with the court, your client and yourself.
Judge Christen has been with the Ninth Circuit for one year after serving on the Alaska Supreme Court. She noted a judge may make a mistake regarding a fact raised in the brief. Although she has read the brief, Judge Christen advised she may not remember every detail in your particular brief. Nonetheless, it is not necessary to re-state what is written in the brief. For Judge Christen, the most effect advocates engage in a conversation with the court. They attempt to find out what is trouble the court about the particular case. Finally, Judge Christen stated a quick, snappy response may not always be best. She is often more impressed with the advocate who pauses to think about the question and response before answering.
Judge Bybee has been with the court for ten years. His pet peeve is lack of candor with the court. Although the attorney advocates for the client, this must be done within the bounds of reason and with great candor. It is in your client's interest to maintain a good reputation with the court. Judge Bybee recalled a public defender who demonstrated great candor by admitting that his client had a very tough road to hoe, given the touch standard of review. Judge Bybee thought this was an appropriate response because he would trust the public defender the next time he appeared in court. Therefore, the public defender was serving his future client by his candor.
Judge Clifton warned the audience that they were unlikely to get away with incorrect case citations or references to the record. Sharp, young law clerks are double-checking your brief and take some pride in "collecting lawyers' scalps." Judge Clifton also stressed the need to be concise. For one week's worth of argument, a Ninth Circuit judge typically reads between 3500 and 4000 pages in briefing alone. Therefore, it is important to get to the point and avoid long explanations that muffle the punch of what needs to be said. Finally, Judge Clifton advised the lawyer to think through her case and decide why you should win. A short, simple explanation that is understood and convincing to a layperson is the goal.
In answering questions, the judges discussed whether some portions of the appellate brief are more important than others. Judge Bybee always looks at the Statement of Facts first to see whether he is persuaded by the statement. Judge Graber believes the Questions Presented are not very helpful, especially when they are long and argumentative. The Questions should be not too specific, but not too long.
Judges Clifton and Christen stressed the importance of the table of contents. Judge Clifton said the Table should serve as an outline of the argument. He is surprised more lawyers do not take advantage of the Table of Contents. Judge Christen said she reads the Table of Contents carefully and refers to them while reading the brief to better understand where the argument is going.
The bar members were extremely grateful to have this short time and receive advise from the four judges.
