Does nagging the court to issue an opinion work?

This interesting article last week by Cara Salvatore describes an unusual move by  prominent appellate lawyer Roy Englert in a pending Third Circuit appeal. The appeal involves a union’s challenge to part of an Atlantic City casino’s bankruptcy reorganization; Englert represents the casino. The appeal was argued on March 4 before Shwartz, Scirica, and Roth. Englert’s letter “request[s], in all respect, that a decision, one way or the other, be issued in the very near future.” It closes, “With respect, in the case of the [casino], we are now at a point that a decision is needed very soon” and requests “a decision as soon as practicable.”

My two cents: I see nothing wrong with a party explaining unusual time-urgency in its briefs or at oral argument, but sending the court a post-argument hurry-up letter strikes me as a risky move.

Stay tuned.

2 thoughts on “Does nagging the court to issue an opinion work?

  1. Peter Goldberger

    If the practical urgency of a decision, for business economic or other compelling reasons, arises only after argument, I don’t see why that wouldn’t constitute new facts (akin to developments causing or risking mootness) and thus be a very appropriate subject for a short, non-argumentative letter. As a tactical matter, it could be risky, I suppose, since in general it’s easier for an appellate court to say “no” than “yes.” But if you are suggesting that a panel might alter the outcome of its decision on the merits out of pique or annoyance with counsel, I don’t agree.

    1. Matthew Stiegler Post author

      No, I don’t mean to suggest that the court would change the outcome out of irritation. But I think there’s a risk that a post-argument hurry-up letter would be perceived as insufficiently respectful to the court. A risk to the outcome of the case isn’t the only risk worth avoiding, no?

      I agree that a hurry-up letter would be more appropriate if the urgency arose after argument. But the letter here suggests that the urgency existed before briefing, and all that changed after argument was that issuance of an opinion has taken longer than the party hoped it would.

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