Category Archives: 3d Cir Bar Assoc

A quick report on last night’s bench-bar reception, plus my soapboxing

Last night the Third Circuit Bar Association hosted a reception at the courthouse in conjunction with the court’s May en banc sitting. I counted eight Third Circuit judges there, along with a nice turnout from law clerks, court staff, and attorneys. 3CBA president Andrew Simpson flew all the way from St. Croix just to be there, past president Jim Martin came out from Pittsburgh, and Chief Judge Smith even attended, less than two weeks after his hip replacement surgery. It was a wonderful event.

One observation: a big chunk the lawyers there last night were among the circuit’s most established and successful Philly-area federal appellate practitioners. That’s hardly surprising. But, people, events like this are emphatically not just for the Third Circuit in-crowd.

If you aspire to do more federal appeals, and to do them better, then events like last night’s reception are for you. Recent clerks, younger lawyers, women and minority lawyers, associates, solo and small-firm and non-profit lawyers, just-scraping-by immigration lawyers, etc: events like this are for you.

Getting to chat with judges is fun. You will never believe how kind and friendly Judge Chagares is. Judge Hardiman will make you laugh out loud. Judge Restrepo has a gift for making you feel more clever than you really are. And meeting other lawyers who share your nerdy appellate enthusiasm is inspiring, and mighty useful when you need moot judges, amicus authors, or panicky-filing-day advice, which you will.

I bet it’s common to feel like you’re on the outside looking in when it comes to Third Circuit practice. I long felt that way, certainly, and in some ways I still do. Way too many big Third Circuit arguments still pit one white-haired-white-guy partner against another. Often they’re dynamite advocates, sure, but we know they ain’t the only dynamite advocates in this circuit.

Events like last night’s reception, and groups like the Third Circuit Bar Association, can be vehicles for perpetuating the advantages of the haves—but, for the have-nots, they offer real opportunities, too.

Seize them.

Sign up now for Third Circuit en banc bench & bar reception next Wednesday

The Third Circuit Bar Association is hosting a free reception for judges and lawyers at the circuit courthouse next Wednesday, May 15. Register now to be there!

The Third Circuit’s spring en banc sitting is that morning, so judges and lawyers from across the circuit will be in town. 3CBA’s president, Andy Simpson, is flying up from the Virgin Islands to be there. The en banc reception that 3CBA put on last year was a wonderful event. I was a wreck that night because I had a big oral argument the next day, and even I enjoyed it. I counted nine Third Circuit judges who attended.

The reception is Wednesday May 15 from 5 to 6 in the Hastie Library of the James Byrne U.S. Courthouse. Beer, wine, and food by DiBruno Brothers will be served.

There’s no charge to attend, and you don’t need to be a 3CBA member, but please RSVP by May 9 with an email to NHeimall@thirdcircuitbar.org.

If you’re able to make it, please join us.

New 3CBA newsletter welcomes Porter, honors Vanaskie

The April 2019 issue of the Third Circuit Bar Association newsletter On Appeal is out, and available online at this link. The new issue features a welcome-to-the-court profile of new Judge David Porter and a warm tribute to recently retired Judge Thomas Vanaskie by one of his former law clerks.

Also in this issue:

  • an insightful summary of US ex rel. Doe v. Heart Solution,
  • advice (from me) for first oral arguments,
  • new 3CBA leader Andrew Simpson’s first President’s Note,
  • an acknowledgment of the tragic death of the son of Circuit Executive Margaret Wiegand, noting that donations may be made in his honor to the Wingman Foundation at this link, and, finally,
  • a note that the next Third Circuit Bench-Bar Conference will be in Philadelphia next spring.

 

Collegiality and credibility, Hemingway and statements regarding oral argument: two Third Circuit judges share their advocacy insights

Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas shared guidance on appellate advocacy yesterday, and I feel sorry for anyone who wasn’t there.

The two judges presented at a CLE program at the courthouse co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. [Disclosure: along with Nilam Sanghvi and Rick Haggerty, I was one of the event’s organizers.]

A few of the points that stood out to me:

  • Both judges emphasized the Third Circuit’s collegiality. Judge Bibas said he realized upon joining the court that it’s reputation was “not just advertising,” it indeed is an “intensely collegial place.” Chief Judge Smith described the court’s collegiality as “extraordinary” and something he believed in with “almost religious intensity.” Any lawyer familiar with the Third Circuit knows it lacks the interpersonal fireworks of some other courts, but hearing the two judges talking about it yesterday drove home for me in a new way how central its collegiality is to the Third Circuit’s identity.
  • Chief Judge Smith described how he “enjoy[s] a really good brief.” (Every lawyer in the room secretly knew it was their briefs he had in mind.) He said he wakes up early, puts on coffee, and settles in with his dog to read briefs, and when it’s an excellent brief he “genuinely enjoy[s] it.” He wryly observed that he prefers briefs whose sentence structure is modeled more on Hemingway than Faulkner.
  • Judge Bibas spoke of the importance of repeat players protecting their credibility. He suggested counsel take on their cases’ weaknesses head-on instead of trying to hide them. He also encouraged lawyers to use an understated, respectful tone, honoring the “intense presumption” that people coming to the court offer their arguments in good faith. Later, he observed that lawyers who file briefs with shrill, intemperate language are less likely to get oral argument because the judges are less confident their arguments will assist them.

And a few smaller-bore points:

  • Chief Judge Smith prefers it when lawyers cite state-court sources as authority for what state law is. Citing federal cases for the meaning of state law strikes him as disrespectful to state courts, but he admitted being sure he was an outlier on this point.
  • When he was an advocate, Judge Bibas was a firm believer in oral argument moots, holding five or six of them for one case.
  • Chief Judge Smith mentioned that he does not see briefs that set out arguments why the court should grant oral argument in the case, and said this is something more lawyers could do. He explained that he didn’t mean a boilerplate request for argument, but rather explaining why counsel wants argument, something specific to the case or issue.

I’m sure my scribbled notes don’t let me do full justice to the judges’ comments, but it was a terrific program. The judges’ panel was ably moderated by Nancy Winkelman, formerly a top appellate practitioner at Schnader and currently interim head of the Philadelphia District Attorney’s office’s law department.

In addition to the two judges’ presentation, the program also included an attorney panel that was two-thirds dynamite, with certified superstars Elise Bruhl of the Philadelphia Law Department and Nilam Sanghvi of the Pa. Innocence Project, plus me. The lawyer panel was moderated gracefully by Chip Becker.

This program was the third in a continuing series of advocacy CLEs that the Third Circuit Bar Association is putting on in locations around the circuit, following similar events last year in Wilmington and Harrisburg. Next up? To be decided.

We’re fortunate in the Third Circuit to have judges who engage with the bar and share their perspectives on how to improve the quality of representation that litigants receive. Lawyers, don’t pass up these real opportunities when they come.

Register now for Effective Third Circuit Advocacy, featuring Chief Judge Smith and Judge Bibas, 3/6 in Philadelphia

Next Wednesday in Philadelphia, Third Circuit Chief Judge D. Brooks Smith and Judge Stephanos Bibas will be the featured presenters at a CLE program entitled Effective Third Circuit Advocacy. The event is co-sponsored by the Third Circuit Bar Association and the Philadelphia chapter of the Federal Bar Association. Registration is open now at this link.

The details:

  • Wednesday, March 6 from 3 to 5 with a wine-and-cheese reception afterwards
  • Ceremonial courtroom (first floor), James Byrne U.S. Courthouse, 601 Market Street
  • 2 hours Pennsylvania substantive CLE credit, approval pending
  • Registration is $25 for members of 3CBA and/or FBA, $50 for non-members. Discounted registration is available for law students and public-sector and public-interest attorneys.

Besides Chief Judge Smith and Judge Bibas, also presenting will be Chip Becker of Kline & Specter, Elise Bruhl of the Philadelphia Law Department, Nilam Sanghvi of the Pennsylvania Innocence Project, Nancy Winkelman of the Philadelphia District Attorney’s office, and me.

This is the third in a series of advocacy CLE events that 3CBA has co-sponsored. The first two events—in Wilmington, Delaware, featuring Judges Jordan and Roth, and in Harrisburg, Pennsylvania, featuring Judges Vanaskie and Krause—were both fantastic. If you’re able to attend this one, you’d be foolish not to.

CLE registration is capped, so register now.

Third Circuit Bar presidency passes from Becker to Simpson

Earlier this month, Andrew Simpson became president of the Third Circuit Bar Association. Simpson is a solo practitioner in St. Croix in the U.S. Virgin Islands, and he becomes the first Virgin Islands lawyer ever to lead 3CBA. He’s an accomplished appellate practitioner who appears regularly in the Third Circuit and last year won a unanimous Supreme Court reversal. (Plus an indefatigable hurricane survivor.)

Simpson takes over the presidency from Charles “Chip” Becker of Kline & Specter. Becker led 3CBA through two dynamic years as the group participated in the Court’s 2017 judicial conference, added four strong board members (Nilam Sanghvi of the PA Innocence Project and Penn Law, Tieffa Harper of the Delaware federal defender, Katherine Romano of Walsh Pizzi, and me), made progress towards a retooled website, and started a popular series of judge-led advocacy CLEs.

In addition to the change in presidency, the 3CBA board elected a new slate of board officers:

If you’re not already a 3CBA member, you ought to fix that. If you’re already a member and you’d like to get more involved by, say, helping with CLE events, writing a piece for the newsletter, or being considered for a future board opening, just reach out to me or any of the other board members.

To Chip, thank you for two dynamite years at the helm. And to Andy, congratulations and good luck!

Judge Krause and Judge Vanaskie offer their views about the Third Circuit’s oral-argument rate

Two Third Circuit judges spoke yesterday at a CLE event on effective appellate advocacy, and they had some mighty interesting things to say about how the court is responding to criticism that it isn’t granting oral argument often enough.

Yesterday’s CLE was a tremendous event, sponsored by the Third Circuit Bar Association. (But I’m biased, since I’m on the 3CBA board and was one of the program’s organizers.) Judges Vanaskie and Krause presented on one panel, with David Fine moderating. The other panel was three dynamite appellate lawyers —Nilam Sanghvi, Craig Shagin, and Sara Solow, moderated by Tom Schmidt. I learned a lot, and all the attendees I spoke to afterwards were glad they came. Organizational boosterism aside, if you practice much in the Third Circuit, you really should make every effort to attend programs like this.

Okay, so here’s what the two judges had to say about oral argument rates. (If you’re new here, I have scads of prior posts about the issue, notably here and here.) This is a hot topic in these parts, so I’ll give a blow-by-blow account in as much detail as my notes and memory permit. [I’m no journalist, so if you were there and remember any of this differently, by all means please contact me!]

To put it in some context, this came up about halfway through the judges’ panel, I believe they discussed this topic at greater length than any other, and the judges seemed clearly to have come prepared to address it. The issue came up when Fine observed that the circuit’s rate had fallen from past years and asked the judges whether they saw the decline in arguments as positive or negative.

Judge Krause tackled it first, and she began, “We listen.” She said the judges have been hearing those in the bar (“Mr. Stiegler and others,” she said, and I blushed) who’ve raised the issue. She acknowledged at length the benefits of holding more arguments: to the parties, to the bar for professional development, to the public at large to see their judiciary in action. And, not least, to the nation itself, so that constituents, the bar, and the public understand the importance of separation of powers, balance of powers, and “an independent judiciary,” emphasis hers. So, she said, there are lots of reasons to have more arguments, and she emphasized that the judges of the court now discuss this issue regularly.

And, she explained, the number of Third Circuit oral arguments has in fact gone up. I was especially interested to hear this, as regular readers will know, because the AOC’s most recent public stats about this are sadly useless. She said that in 2016 the Third Circuit held 201 oral arguments, while in 2018 it held 255, an increase of almost 30%. (I haven’t independently confirmed that data, but I’m certain if she said it then it’s correct.) Other circuits’ recent argument numbers did not increase, she noted, which suggests that the increase was the product of the judges’ deliberate choice.

Finally, Judge Krause said that she expected the number of Third Circuit arguments to continue to increase. She said that judges are joining the court with recent experience in the bar who share that perspective, by which I believe she meant the bar’s perspective about the value of argument and the need for more of them.

Judge Vanaskie largely echoed Judge Krause’s comments. He agreed that “certainly” the judges have had discussions about the frequency of oral argument. He explained that deciding how many arguments to hold was a balancing act. When preparing for each argument, he said, the judges take an extremely deep dive into the case. It takes a lot work to be that well prepared, and doing it for every case the court decides isn’t feasible.

As it stands now, he said, every lawyer knows that when the court grants argument it is extremely important, that the panel is troubled by the case and not of one mind. And he believes holding argument in every case would be a mistake, because it would dilute its importance and add to the expense of an appeal for all clients.

Judge Vanaskie reiterated that the issue is under active consideration in the court. He said that at every judges’ meeting now there is some discussion about it. He said the judges are open to listening.

Finally, Judge Krause contrasted the Third Circuit’s practice to the Second Circuit’s, where argument is held in most cases but the lawyers sometimes get only five minutes. She asked whether (and I’m paraphrasing from memory here) arguments that short really help enough to justify their cost and said she did not believe so.

Fascinating and remarkable, and not, I suspect, the last word in this conversation.

Federal appellate advocacy CLE set for September 5 in Harrisburg, featuring two Third Circuit judges

Next month, the Third Circuit Bar Association will put on a free CLE on federal appellate advocacy in Harrisburg, PA. The featured presenters will be Third Circuit Judge Thomas Vanaskie and Judge Cheryl Ann Krause. The program also will include a panel of expert appellate practitioners. It’s a terrific opportunity to hone your skills and to meet practitioners and judges. And it’s free, with lunch provided.

The details:
Effective Third Circuit Advocacy
Federal courthouse, 228 Walnut St, Harrisburg PA
Wednesday, September 5, 2018
10:30 to 12:30, followed by lunch
2.0 hours of PA CLE credit
Free

(I’m on the 3CBA board and am one of the event organizers, along with David Fine and Nilam Sanghvi.)

This is the second in a series of appellate advocacy CLEs that 3CBA is putting on around the circuit. The first one, in Delaware and featuring Judges Jordan and Roth, was a big hit. (My “Oral argument as kabuki” post discussed a useful oral-argument lesson I learned there.)

The program and lunch are free, but registration by August 31 is required. To register, email me at Matthew@StieglerLaw.com with your name and address. And if you’re not a current 3CBA member, now’s a great time to join or renew, link here.

Don’t miss it.

A bunch of good Third Circuit oral arguments

If you want to get better at oral argument, how do you do it? I recently had a big Third Circuit argument (link to the audio here, if you’re curious), so I’ve been puzzling over that question a lot. You can work harder to prepare for each individual argument, you can read books about oral advocacy, and you can practice not saying, “I try not to read that many cases, your Honor. . . . That’s why I wore a suit today,” like this fellow did. All helpful.

But one of the best ways to improve at oral argument is to listen critically to good arguments. It’s easy to find good Supreme Court arguments, but finding circuit arguments takes a bit more work. The Third Circuit posts audio of all of its arguments online (low-quality audio, alas), and video of a handful, but you have to know which cases to look for.

For this post, I’ve pulled together links to some Third Circuit oral arguments by some excellent oral advocates. (Plus one Supreme Court argument because I couldn’t bear to leave Judge Bibas out.) To be clear, this isn’t a list of the best Third Circuit arguments or advocates — for each one linked here, there are many others I could have included. But if you’re looking for model arguments from our circuit, I believe this list will get you off to a good start.

 

Future Third Circuit judges and Third Circuit nominees

Cheryl Krause — Mitchell Partners v. Irex Corp. — argument — opinion

Stephanos Bibas — Tapia v. US* — argument — transcript — opinion

Peter Phipps (also Ted Olson and Paul Clement) — NCAA v. Governor II (panel) — argument [he starts at 47:10] — opinion

Rebecca Haywood (vs. Lisa Freeland) — US v. Thompson — argument — opinion

* Supreme Court argument.

 

Former Third Circuit judges

John Gibbons — Gov’t of V.I. v. Lansdale — argument — opinion

Timothy Lewis (vs. Robert Zauzmer)– US v. Kemp — argument [he starts at 32:20] — opinion

 

Former solicitors general

Paul Clement, Ted Olson — NCAA v. Governor II (en banc) — argument — opinion

Neal Katyal — City of Philadelphia v. Attorney General — video — audio [he starts at 26:15]

Seth Waxman (vs. James Martin) — Avaya v. Telecom Labs — argument — opinion

 

Third Circuit Bar Association presidents

Chip Becker — L.R. vs. School Dist — argument [he starts at 16:10] — opinion

Lisa Freeland — In re: Hoffner — argument — opinion

Peter Goldberger — US v. Hird — video [he starts at 9:50, 37:50, and 43:00] — audio

James Martin — UGI Sunbury v. Permanent Easement — video

Nancy Winkelman — Huertero v. US — argument — opinion

Andrew Simpson — Sala v. Hawk — argument — opinion

 

Other Third Circuit advocates

Howard Bashman  — A.S. v. Smithkline Beecham — argument — opinion

Ellen Brotman — US v. Richardson — argument — opinion

Ilana Eisenstein — US v. Cooper — argument [she starts at 13:13] — opinion

Jonathan Feinberg — US v. Bennett — argument — opinion

David Fine vs. Robert Zauzmer — US v. Rosario — argument

Arianna Freeman — Brown v. Superintendent — argument – opinion

Lisa Mathewson — US v. HIrd — video [she starts at 19:15] — audio

Bruce Merenstein — US v. Fattah — video [he starts at 19:00] — audio

Katherine Romano — Katz & Assocs. v. Concepts in Health — argument

Matthew Stiegler (me) — Reeves v. Fayette SCI — argument — opinion

 

Other advocates from outside the circuit

Michael Carvin — Ehrheart v. Verizon Wireless — audio [he starts at 11:35] — opinion

John Elwood — USA v. EME Homer — argument [he starts at 28:25] — opinion

Roy Englert — In re: Tribune Media — argument — opinion

Miguel Estrada — Crystallex Int’l v. Venezuela — video — audio — opinion

David Frederick — In re: Zoloft — argument — opinion

Deepak Gupta — In re: NFL Players Concussion Injury Litig. — argument [he starts at 21:25]– opinion

Alan Gura — Binderup v. AG — argument [he starts at 12:50] — opinion**

Orin Kerr — US v. Auernheimer — argument — opinion

Christopher Landau — In re: Jevic Holding — argument [starts at 14:20] — opinion

Patricia Millett — In re Nortel Networks — argument [starts at 28:10]– opinion

Andrew Pincus — DE Coalition v. Strine — argument — opinion

Carter Phillips — Gonzalez v. Owens Corning — argument [he starts at 20:10] — opinion

Tejinder Singh vs. Kannon Shanmugam  — Sikkelee v. Precision Airmotive — argument — opinion

** The links are for the panel argument and the en banc opinion. Here is the en banc argument.

Supreme Court reverses Third Circuit appealability ruling

Today the Supreme Court reversed the Third Circuit’s non-precedential 2016 ruling in Hall v. Hall. The vote was 9-0, and the opinion was written by Chief Justice Roberts. The Supreme Court opinion is here, the Third Circuit opinion is here, and the Scotusblog case page with the briefs and more is here. The Court held that, ” when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.”

The case is of interest to this blog not merely because it arose from the Third Circuit, but also because the winning side was represented by Andrew Simpson, who is the President-elect of the Third Circuit Bar Association. Andy is a terrific lawyer in St. Croix in the Virgin Islands. (Regular readers of this blog also will remember he shared his first-hand account of the hurricane devastation last fall.) My hearty congratulations to Andy on a magnificent win.

 

The appellate advocacy training in DE featuring two Third Circuit judges is next week, and now its free

This Wednesday, January 10, Third Circuit Judges Kent Jordan and Jane Roth will be among the presenters at a CLE program on effective Third Circuit advocacy.

And, to ring in 2018, the organizers are waiving the registration fee.

The program will be held at the federal courthouse in Wilmington, Delaware, on the third floor in the jury selection room. You will need a government-issued ID to enter the courthouse. The program will be from 3 to 5 pm with refreshments after. DE and PA CLE credit approval is pending. More details are in this earlier post. To register, email me at Matthew@StieglerLaw.com.

Please share this post, and I hope to see you on Wednesday.

Third Circuit Judges Jordan and Roth will present at appellate-advocacy CLE in Delaware on January 10

No one is born knowing how to tell compelling stories in their statements of the case. No one’s first oral argument is an elegant symphony of understated persuasion. Even the best Third Circuit advocates, lawyers like Peter Goldberger and Nancy Winkelman and Donna Doblick, work very hard to continue learning and improving. Appellate advocacy isn’t a talent, it’s a skill.

Here’s a chance to improve your appellate skills. Next month, there will be a two-hour CLE program in Delaware, entitled Effective Third Circuit Advocacy. The presenters:

  • The Honorable Kent A. Jordan, Circuit Judge, U.S. Court of Appeals for the Third Circuit
  • The Honorable Jane R. Roth, Circuit Judge, U.S. Court of Appeals for the Third Circuit
  • The Honorable Christopher J. Burke, Magistrate Judge, District of Delaware
  • Tieffa Harper, Assistant Federal Public Defender, District of Delaware
  • Ilana Eisenstein, DLA Piper partner and former Assistant to the Solicitor General

The program will take place on Wednesday, January 10 from 3 to 5 p.m. with refreshments afterwards. It will be held at the Federal Courthouse in Wilmington at 844 N. King Street.

The event is co-sponsored by the Third Circuit Bar Association (3CBA) and the Delaware Chapter of the Federal Bar Association. The fee to attend is $20 for current members of either sponsor or $40 for non-members.  (You can join or renew at the event, or online here or here.)

To register in advance, email me at Matthew@StieglerLaw.com. (I’m a 3CBA board member and one of the event’s organizers, along with Nilam Sanghvi and Kelly Farnan.) In your email, include your name, business address, and state(s) of admission.

(If you’re interested but unable to attend this one, panic not! 3CBA plans to put on a series of these programs in 2018 and beyond, featuring different Third Circuit judges, in locations around the circuit.)

This should be a terrific event. I’m going, and I hope you can, too.

Want to be a Third Circuit bar association board member?

There are two openings on the Board of Governors for the Bar Association of the Third Federal Circuit. If you’re interested in joining the board, express your interest now.

I’m a 3CBA board member, and I enthusiastically encourage anyone passionate about Third Circuit practice to consider it. It’s a privilege and a real pleasure getting to work with the remarkable folks on the 3CBA board. 3CBA does lots of good work — putting out a circuit practice guide and a newsletter, putting on circuit-conference programming, organizing CLEs with Third Circuit judges and appellate experts, and more — and you can help us do it better.

While anyone is encouraged to express interest now, we anticipate filling the two current openings with one candidate each from Delaware and New Jersey.

To express your interest, send an email to 3CBA’s president, Chip Becker, at Chip.Becker at klinespecter.com.

And if you’ve read this far and you’re not a 3CBA member yet, well, egads. The link to join is here. And do it fast, dues are going up in 2018 but are still just $40 until then.

Third Circuit Bar presidency passes from Goldberger to Becker

Since new presidents are on everyone’s mind today, it’s a fitting day to note the change in leadership at the Third Circuit Bar Association.

This month Charles “Chip” Becker became 3CBA president. Becker is a partner at Kline & Specter, leading the firm’s post-trial and appellate litigation work. His father was legendary Third Circuit Judge Edward Becker, and he is a top appellate lawyer in his own right, playing a major role in recent years in litigation arising out of the antipsychotic drug Risperdal and the 2015 Amtrak derailment. One of his first tasks as president will be leading 3CBA’s support of the circuit’s judicial conference in April. Becker is a superb choice for 3CBA president and I look forward to seeing all he accomplishes.

Becker succeeds Peter Goldberger, who led 3CBA as president since 2014. Goldberger is the founder and principal of a three-lawyer firm in Ardmore, PA, focusing on appeals and post-conviction aspects of federal criminal cases nationwide. In 2015 Goldberger added to his extraordinary record of appellate accomplishment by successfully defending in the Third Circuit his post-conviction exoneration of Han Tak Lee. He is the 2015 recipient of the National Association of Criminal Defense Lawyers’ prestigious Robert C. Heeney Memorial Award and 2016 recipient of the Federal Criminal Law Committee for the Eastern District of Pennsylvania Clifford Scott Green Bill of Rights Award. The association has benefited tremendously from his fine leadership as president.

In our polarized age, there aren’t many folks who think the world of both our last US president and our next one. It’s good to remember today that 3CBA has been, and will continue to be, led so well.

3CBA summarizes the appellate-rules changes

Peter Goldberger, President of the Third Circuit Bar Association, has summarized for 3CBA members the changes to the federal appellate rules that went into effect last week. It’s a tremendously helpful overview, and he’s generously given permission to post it here.

(If there’s a better legal-practice bargain than 3CBA’s $40-a-year dues, I don’t know of it.)

Goldberger writes:

Effective December 1, 2016, two important changes in the Federal Rules of Appellate Procedure went into effect, which I wanted to be sure you knew about.  First, the rule has changed by which the time periods are measured for responding to certain filings by another party.  Second, the word-limits for briefs, motions and some other filings have changed.  In addition, the Third Circuit has recently changed its electronic-filing rule as regards the Appendix to briefs.  Finally, some clerk’s office fees have increased. The details of these changes can be found in recent notices posted at the Court’s official website under the heading “News & Announcements.”  This email provides the highlights:

  1. All of us have grown familiar with the time-counting rule under which 3 days were added to the time otherwise set for responding to a document, such as a brief or motion, that was not hand-delivered to us, whenever by rule or order that time period was to be measured from “service” of that document.  This additional allowance was based on the typical time that it was understood it takes for first-class mail to be delivered. As of December 1, the federal appellate rule is amended (in parallel with changes in the civil and criminal rules) to treat electronically filed documents as if they had been hand-delivered; that is, three days will no longer be added to the time to respond to motions and briefs that are served through the court’s electronic filing system.  Since this effectively shortens the time for responding in many instances, it is important to be aware and plan accordingly.
  1. As of December 1, the allowable length of briefs and certain other documents, as measured by word-count, has been reduced.  Most notably, the permissible length of a principal brief is reduced from 14,000 words to 13,000 words, and for reply briefs from 7000 words to 6500 words.  The allow­able length of a petition for mandamus changes to 7800 words. An amicus brief is limited to ½ of the size of a principal brief. For a motion or response to a motion, the limit is 5200 words (or 20 pages). (This will sometimes be an increase over the previous rule.)  Rehearing petitions will now have a 3900-word limit.  As mentioned, there are other details in the Court’s notice.

Notably, unlike some other Circuits, the Third Circuit has neither opted out of any of the national changes, nor will it alter its existing practice or standards for judicial review of motions to exceed these new and reduced word limits.

The revised limits apply to pending cases, except that where the appellant’s opening brief was filed prior to December 1, the new limits do not apply to the appellee’s brief or appellant’s reply.

  1. The Court has also rescinded the previously-available option (“Option B”) of filing the appendix entirely on paper, and not via ECF.  All appendices must now be filed electronically.
  1. Certain of the Clerk’s fees for services have increased as of 12/1/16. Notably, the list of changes does not include the filing and docketing fees for appeals and petitions.

Most of these changes will be discussed in more detail in the 3CBA’s forthcoming newsletter.  As always, the Board thanks you for your membership and participation in our Association.

The new 3CBA newsletter is out, featuring a tribute to Judge Sloviter

I just received the August 2016 issue of On Appeal, the newsletter of the Third Circuit Bar Association. The new issue features a warm tribute to Judge Dolores Sloviter, who recently took inactive status, by her former clerk Nancy Winkelman. Winkelman is now a top appellate practitioner at Schnader and President of the American Academy of Appellate Lawyers. Winkelman writes:

. . . I have been so grateful to work with and come to know this most extraordinary jurist: a brilliant intellect, with an extraordinary work ethic; a courage, strength, and independence born of upbringing, character, and necessity; a drive always for the best in herself and everyone around her; a deep commitment to justice and to the judicial system; and that unique and most precious combination of grit and heart.

And, just as Judge Sloviter saw something in me that others may not have seen thirty years ago, so she has given me the opportunity to see something in her. Like many brilliant women of her generation who would come to succeed in a male profession, circumstances required Judge Sloviter to develop a tough exterior. She is of the small cadre of women who were the first in their fields; who were the only women in the room for far too long; who were always surrounded by men who, even when they had good intentions (and many did not), could not possibly have left their prejudices and stereotypes at the door.

And:

Appointed to the Third Circuit Court of Appeals by President Carter in 1979, Judge Sloviter was the first woman ever to serve as a judge on that Court. She was the first (and so far only) female Chief Judge of the Third Circuit. In fact, she is only the fourth woman in the entire country ever to serve as a Circuit Chief Judge at all. Judge Sloviter authored an astounding 808 precedential opinions in her almost 40-year tenure on the Court of Appeals, shaping the law in numerous areas, including antitrust and the First Amendment.

A fierce advocate for diversity and inclusiveness, as Chief Judge (a position she held from 1991 to 1998), Judge Sloviter created the ground-breaking Task Force on Equal Treatment in the Courts to examine racial and gender bias for the Third Circuit. She opened the Third Circuit Conference to all lawyers for the first time ever (a tradition that continues to this day). And she supported women and work-life balance in numerous ways, including offering part-time law clerk positions to working mothers.

It’s a lovely piece worth reading in full.

Also in this issue are detailed write-ups of State National by Reginald Sainvil of Reed Smith and Roberts v. Ferman by former Fisher clerk Devin Misour of Farrel & Reisinger.

The current On Appeal is not yet available on the 3CBA website, but you can download older issues at this link.

And if you practice in the Third Circuit and you’re not a 3CBA member yet, get on it. Dues are just $40, you can join here.

Two interesting links

Howard Bashman’s latest Upon Further Review column in the Legal Intelligencer (free link here) contains a fascinating discussion of video recording of Third Circuit arguments. (That’s a point I mentioned in my circuit website roundup here.) Bashman reports that Chief Judge McKee told him “he was hoping to convince his colleagues on the Third Circuit that the court should join the Ninth Circuit in posting video of its oral arguments online.” I share Howard’s strong support for the idea.

And here is the latest newsletter of the Bar Association for the Third Federal Circuit. As usual it is essential reading for CA3 practitioners and super-fans. It includes an article by Judge Smith discussing circuit cost-reduction efforts, which notes:

[I]n the wake of sequestration, Chief Judge
Theodore A. McKee implemented a fiscal austerity program to be applied to
both the use of space within the court units of the Circuit and the expenditure
of funds that could be re-programmed from facility improvements to personnel.
Quite simply, Chief Judge McKee’s concerns were that the job security of
court staff has priority over any short-term improvements in rented space. Our
Circuit was the only one in the country to adopt such a policy. And that policy
set the tone for our implementation of the national space reduction goals that
were subsequently mandated by the Judicial Conference.

The latest issue also includes this article, co-authored by Bashman and me, discussing the Lehman Brothers decision, plus an article by me on CA3 en banc practice, adapted from this blog post. I was proud to have the chance to contribute to 3CBA’s fine work.