Category Archives: Events

3 Third Circuit judges will speak at a major event on judicial independence

“Americans increasingly view the judiciary as an extension of the political system,” and “Trust in the judiciary is at a crisis level.” So say the organizers of a remarkable program that will take place at Penn Law in Philadelphia on Saturday, October 26, entitled the Fair & Impartial Judiciary Symposium.

The day will feature retired Supreme Court Justice Anthony Kennedy speaking on “The Future of Judicial Independence.” Third Circuit Judges McKee, Scirica, and Rendell also will be presenting. There are too many other notable presenters to list them all, but they include Paul Clement, Kathleen Sullivan, and Linda Greenhouse. A link to the complete agenda is here.

The lead organizer of the event appears to be the Rendell Center for Civics and Engagement, the civics nonprofit founded in 2014 by Judge Rendell and former Governor Ed Rendell.

You can register to attend at this link. Registration is $75. For lawyers, 7.0 hours of Pa. CLE credit (including a welcome 3.5 hours of ethics credit) are available for an additional $280 fee ($70 for public interest or non-profit attorneys). Seating is limited, so if you want to attend don’t delay registering.

I’m going—I can’t imagine not going. I hope to see you there.

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.

Chief Judge Smith discusses oral-argument rates, #MeToo in the courts, lousy reply briefs, and more

Third Circuit Chief Judge D. Brooks Smith discussed the state of the circuit yesterday at a CLE program in Philadelphia. The event was put on by the Philadelphia Bar Association. I posted separately here about Chief Judge Smith’s important remarks about judicial independence at the end of the event.

Here are some other highlights from his talk:

  • The federal courts’ caseload has declined since 2008, which he called a “concerning phenomenon.” The Third Circuit’s caseload has dropped since 2014.
  • Specific caseload areas are growing, including health care/pharma and criminal cases from New Jersey, civil cases from Delaware, and, above all, immigration cases.
  • Pro se appeals are a majority of the Third Circuit’s caseload and have been for several years. In 2018, pro se appeals were 56% of the court’s cases.
  • Chief Judge Smith spoke at some length about the circuit’s oral-argument rate and why criticism of that rate as too low is overstated. He noted that few pro se cases are appropriate for oral argument, and that hearing fewer arguments allows the judges to rigorously prepare for the ones they hear. And he observed that the court hears oral argument in over a third (34.6% in 2018) of the cases submitted on the merits, which he characterized as “not a bad rate.”
  • As to argument video, he noted that court upgraded its video cameras, microphones, and audio to reduce feedback (praise be!). They’ve added the ability to focus on individual judges. He expects video posting to increase over time, as some have pointedly urged, and thinks that is a good thing even though he was “no great friend” of video-recording arguments originally. He reported that, in 2017, the circuit posted of video of 7.5% of its arguments, and 8.8% in 2018. Only two videos have been posted from the 95 arguments so far in 2019, but he predicted that will increase.
  • The circuit has been using software that inserts quasi-hyperlinks to cases and other legal authorities for judges reading briefs. He also mentioned software that links to appendix citations, but I’m not clear whether that’s live yet.
  • Chief Judge Smith has worked to get the attention of New Jersey’s senators to the state’s many district court vacancies, which have put D.N.J. in “dire straits,” but “so far without any success.”
  • The next circuit bench–bar conference will be in May of 2020 in Philadelphia.
  • The court held its judges-only conference last fall, which focused on judicial wellness. One aspect discussed was judicial disability, and Chief Judge Smith encouraged lawyers to contact him directly with information about a judge’s misconduct or disability.
  • He tries to keep an eye on cases that are taking particularly long to be decided. If lawyers believe a case is taking inordinately long, he invited them to bring it to his attention. (Asked how long is long enough to contact him about, he quipped, “You’re lawyers, figure it out.”)
  • He spoke at length about the Judiciary Workplace Conduct Working Group, which Circuit Executive Margaret Weigand was a member of. He emphasized attorneys’ ability to report misconduct based on second-hand awareness as well as judges’ duty to report, and described the efforts as a “major step.”
  • Chief Judge Smith was “deeply disturbed” that major news reports had painted a misleading picture about the number of misconduct complaints against judges. He observed that the majority of internal complaints were against non-judges, and that the reports failed to note that the “vast, vast” majority of complaints against judges were brought by disappointed prisoners and pro se litigants.
  • He spoke candidly about the court’s decision to create an award named for Joseph Biden recognizing service to the court: “the courts don’t have many friends,” so the decision was made to recognize “in as conspicuous a way as possible” those who had done a lot for them.
  • Asked for practice tips, he described, “brazenly and shamelessly,” his dim view of reply briefs. Most are repetitive, merely rehashing the opening brief, rarely presenting much that alters the equation in any way. In fact, his normal practice is to read the opening briefs and answer briefs before giving the briefs to his clerks, but, as to reply briefs, he just asks the clerks to read them and let him know if there’s anything in them he needs to know about. Zounds! He jokingly thanked the audience for letting him “vent on a subject very near and dear to my heart.”

Kudos to the Philadelphia Bar Association for putting on this valuable event.

Third Circuit’s Chief Judge expresses alarm at President Trump’s attacks on judges

Near the end of his absorbing talk yesterday in Philadelphia on the state of the Third Circuit, Chief Judge D. Brooks Smith was asked by a lawyer in the audience about the current partisan climate, attacks on judicial independence, and what the federal judiciary can do about it.

Chief Judge Smith responded that he had expected this question and was glad for it. He observed that he needed to be “circumspect” in addressing political or partisan matters, but that, at this point in his life, he “felt obligated to speak candidly.” The room went quiet.

Partisan rhetoric, he said, was at a level and volume we had not seen in our lifetime. While there had been other divisive times in our nation’s history, “this is definitely one of them.” He said there have been “attacks on the judiciary and on judges,” including “by the President of the United States. I find this alarming.”

He recalled Chief Justice of the United States John Roberts’s remarks on judicial independence last year, noting that the Chief Justice had “felt impelled” to make an “unusual public response.”

Chief Judge Smith explained that he was not worried that the attacks on the judiciary would affect him or his colleagues, but that he did worry about the public impact. He joked that he lived in the Alabama-in-between part of Pennsylvania, and he said he listened and heard a lot. When judges are criticized by true believers in one political figure or another, the criticisms are “congenial to the political figure they’re aligned with,” not based on an understanding of how the process works. He went on:

And that’s what we’re about [here he tapped the table for emphasis] is process. If our system is about anything it’s about process, and fair process. And we don’t [tap] have Obama judges and we don’t [tap] have Bush judges, and the people I work with don’t consider themselves that, I don’t consider them that.

Finally, if I can end on this pointed note. Why the hell would I take a life-tenured job guaranteed to earn me less over all those years than I could otherwise make, and I did take a substantial cut many years ago to become a judge, to pledge my allegiance to a political figure? What. Fun. Is. That? The fun of judging is the intellectual challenge and the independence to do what you think is right, what you hope is right legally.

Quite something. I went to this talk expecting nerdy circuit intel, which we also got and which I’ll summarize in a separate post.

I wasn’t expecting history.

Chief Judge to discuss “State of the Third Circuit” in Philadelphia next week

Third Circuit Chief Judge D. Brooks Smith will present next Thursday, April 25, at a CLE program on the state of the Third Circuit. The program is co-hosted by the Federal Court and Appellate Court committees of the Philadelphia Bar Association. From the event announcement:

Chief Judge D. Brooks Smith will address the state of the United States Court of Appeals for the Third Circuit. The Chief Judge will discuss challenges faced by the Third Circuit including:

  • An increase in oral arguments
  • Innovations in the Third Circuit – video posting of arguments, etc.
  • Vacancies and the new judges
  • The lingering effects of the government shutdown
  • Expectations of the court for practitioners

Chief Judge Smith will also provide an update on newly-issued conduct rules promulgated in the wake of the Kozinski “scandal” of 2018.

This looks like an outstanding event. I’m registered for it, and I hope to see lots of my fellow Third Circuit enthusiasts there. Details and registration at this link.

My thanks to Howard Bashman for letting me know about it.

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.

Judges Restrepo and Bibas offer advice on appellate practice [guest post]

Note: this guest post was written by Karl Myers, a leading Pennsylvania appellate lawyer at Stradley Ronon. You can follow Karl on Twitter (as I do) at @KarlSMyers.

On November 28th, I attended a CLE program in Norristown at the Montgomery Bar Association, entitled “Tips on Third Circuit Practice From Two Circuit Judges.”  The panelists were Third Circuit Judges Felipe Restrepo and Stephanos Bibas.  It was an interesting discussion that covered the expected recommendations about briefing and argument, but also featured some interesting tidbits that likely will be of use to Third Circuit practitioners.

For example, Judge Bibas emphasized the need to carefully use authority in briefs.  He noted that he has seen a number of submissions that treat non-binding authorities (like district court and magistrate judge decisions) as if they are binding on the Third Circuit.  Citing those opinions necessitates a discussion about the facts and rationales employed.  That way the court has a good handle on why those cases have been cited and why they should be followed.  Along the same lines, Judge Bibas noted that he finds it particularly effective when advocates pull the briefing filed in the cases cited and use the context of that advocacy to demonstrate how the cases cited should be understood.

In terms of the Judges’ review process, Judge Restrepo starts by reading the appellant’s summary of argument, then reads the district court opinion, and then returns to the appellant’s brief.  He picked up this technique from Judge Cheryl Krause, as she quickly learned that reading the district court opinion first does not make much sense because some issues addressed in the district court opinion may not be appealed, and thus the district court’s discussion of those issues need not be considered.   Both Judges Restrepo and Bibas use a combination of paper and iPads for review of briefs and opinions.  Judge Bibas noted that he usually starts with reading hard copies but will use an iPad for a third or fourth review of the briefs or while traveling.

Judge Bibas shared some insights about the timing of oral argument and the associated need to timely file reply briefs.  He explained that cases are typically assigned to argument panels about 8 weeks before argument.  That assignment happens once the appellee’s (red) brief is filed – not when the reply is filed.  The panel members then will discuss candidates for argument typically 4 weeks or so before the argument week.  So it behooves an appellant to file its reply in a timely manner and not ask for more than one extension, as otherwise there is a good chance the panel will make a decision about argument without having considered the reply.  Both Judges Bibas and Restrepo noted that reply briefs are relatively rare, as they see them in fewer than half of all cases – a statistic I found surprising.  They both would like to see more replies, as they are often left wondering what the appellant’s response is to some of the appellee’s points in cases where they do not receive a reply.

With regard to argument itself, Judge Restrepo noted that even though a specific amount of time is set for each case, there is wide variance in how rigorously the time is enforced by each presiding judge.  So once a case is set for argument and the panel identified, he recommends watching the court’s argument videos or listening to the audio streams from another panel with the same presiding judge to get a feel for how the argument will be managed.

In my view, both Judges Restrepo and Bibas were interesting and engaging speakers and seemed to relish the opportunity to educate and engage with the bar so practitioners could have a better understanding of the court’s work and, as a result, more effectively represent their clients.

Third Circuit establishes a new award named after Joe Biden to honor service to justice and the courts

The Third Circuit announced today that it has created a new award, the Joseph R. Biden, Jr. Award for Exemplary Service to the Third Circuit, and Biden himself will be the first recipient. Chief Judge D. Brooks Smith will present the award at a judges’ meeting on October 18 in Wilmington, Delaware.

The new award “recognizes outstanding service in promoting the cause of justice and the work of the courts within the Third Judicial Circuit.” Future recipients will be announced at the circuit conference.

Chief Judge Smith gave this statement:

I am extremely pleased that Vice President Biden has agreed to accept the inaugural award which will bear his name. As a veteran U.S. Senator and as a former Senate Judiciary Committee chairman, Vice President Biden has for decades been a friend, supporter, and defender of an independent federal judiciary. Over those years, his commitment to the courts and judges within the Third Circuit has been unflinching. This is a small way for the Third Circuit family to say ‘thank you.’

(Do I think it’s irrelevant that Biden was a leading Senate opponent of Chief Judge Smith’s own nomination? No, I do not.)

 

 

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.

The Third Circuit honors its newest judge, Stephanos Bibas

There isn’t much glory in writing a circuit blog, but now and again it leads to wonderful things, and so it was yesterday when I had the privilege attending the investiture of the Third Circuit’s newest judge, Stephanos Bibas. It was an inspiring and joyous ceremony.

Present for the event in the Ceremonial Courtroom were Justices Kennedy and Alito, most of the Third Circuit’s judges, Sixth Circuit Judge Kethledge (who clerked with Bibas for Kennedy), Eighth Circuit Judge Stras, DC Circuit Judge Katsas, and many other legal luminaries, as well as Judge Bibas’s family and “dozens” of his fellow parishioners.

Chief Judge Smith presided with grace and aplomb. Judge Krause spoke warmly of having known Bibas since his days as a (“quite clean shaven”) Kennedy clerk. White House counsel Don McGahn read the Presidential Commission, and he said Bibas gave one of the most impressive interviews he’d seen. Bibas’s frequent collaborator and longtime friend Dean Richard Bierschbach, described him as “a wonderful paradox,” combining ferocious intellect and intensity with warmth and humility.

Judge Bibas spoke too, beginning with a passionate affirmation of his religious faith and offering heartfelt thanks to his colleagues past and present. He also recounted how he had attended Judge Krause’s investiture and remembered sitting there thinking to himself (roughly), “well, it’s never going to happen to me, but I’m glad it happened for Cheryl.”

Of course it did happen for Judge Bibas, and yesterday the Third Circuit community celebrated it.

 

Note: I’ve embedded Twitter posts that include photos of the ceremony by UNC law professor Carissa Hessick.

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.

Judge Hardiman will be the keynote speaker at a Notre Dame symposium on administrative lawmaking

Third Circuit Judge Thomas Hardiman will be the keynote speaker tomorrow at a symposium hosted by the Notre Dame Law Review on “Administrative Lawmaking in the 21st Century.” The symposium website is here, and a preview by Jeffrey Pojanowski on the Notice & Comment blog is here.

Professor Pojanowski writes:

The keynote speaker will be Judge Thomas M. Hardiman of the U.S. Court of Appeals for the Third Circuit. Diligent readers of this blog may remember my quick look at his deference jurisprudence in the lead-up to the last SCOTUS nomination. As my blog post noted, Judge Hardiman has not weighed in at great length on administrative law issues, so seeing what he has to say in this forum will be fascinating, especially with one of Judge Hardiman’s Third Circuit colleagues recently flying the Thomas/Gorsuch flag of Chevron and Auer skepticism.

(The second link is to this blog.)

 

Fascinating indeed!

 

3 Third Circuit judges will speak at Judges and Journalists program in Pittsburgh

The Third Circuit is holding its second Judges and Journalists program on October 31 in Pittsburgh. Judge D. Michael Fisher is the moderator, Chief Judge D. Brooks Smith will speak, and Judge Thomas Hardiman is moderating one of the panels. I recommend attending if you can.

Here’s what it’s about:

This conference will explore the challenges and opportunities for improving relationships and lines of communication between judges and journalists. In this dialogue, prominent judges, journalists, and attorneys will discuss how changes in the media landscape, new technologies, ethical constraints, and recent developments in media law affect journalistic reporting on courts and cases.

Besides the three Third Circuit judges, other presenters will include five district judges, a slew of media bigshots, the executive director of the Administrative Office of the US Courts, and some guy named Howard Bashman. The complete program is here.

I got to take part in the first Judges and Journalists program last year in Philadelphia, and it was fantastic. My post about last year’s event is here.

The event is Tuesday, October 31, from 11 to 4 at Pitt’s University Club. Registration is free, or pay $75 to also get 2.5 hours of PA CLE credit.

To attend, RSVP here.

“You Be the Judge,” featuring Judge Rendell

On Tuesday, October 17, Third Circuit Judge Marjorie Rendell will be the featured presenter at an event in the Philadelphia area entitled “You Be the Judge.” Here is the event description from its Facebook page:

YOU BE THE JUDGE – Take a free crash course on how our federal judiciary works, and how vital it is to our way of life.

• Hear from special guest, the Honorable Marjorie O. Rendell, Senior Judge on the U.S. 3rd Circuit Court of Appeals as she shares her inside views.
• Play the part of a federal judge on a panel, and discuss and
decide on an important case.
• Discover ways to ensure that lifetime appointments to the
federal bench will be fair, independent, and diverse.

When: Tuesday, October 17, 2017, 6:45 pm to 9:00 pm
Where: Beth Sholom Congregation (the landmark synagogue on 611, designed by Frank Lloyd Wright)
8231 Old York Road, Elkins Park, PA 19027 ⎯ Fischman Auditorium

Light refreshments will be served.

The event is sponsored by the National Council of Jewish Women and co-sponsored by a slew of state and local groups.

Register through the event page or here.

Judge Scirica to receive American Inns of Court national award

Third Circuit Judge Anthony Scirica will receive the 2017 American Inns of Court Lewis F. Powell Award for Professionalism and Ethics, the Third Circuit announced today. He’ll receive the award at an event at the Supreme Court hosted by Justice Kagan on October 21.

Established in 1990, the award goes to “a lawyer or judge who has rendered exemplary service in the areas of legal excellence, professionalism, and ethics.” While EDPA Judge Louis Pollak won the award in 2009, Judge Scirica is the first Third Circuit judge to receive it.

Earlier this year, Judge Scirica received the American Inns of Court Professionalism Award for the Third Circuit.

A few highlights from the Third Circuit conference

I’ve just returned from the Third Circuit judicial conference in Lancaster. All 11 active judges were there, along with at least six senior judges and a bevy of district judges from around the circuit. I loved having the chance to see so many of the circuit’s judges and fellow lawyers. Especially everyone I got to meet for the first time, and extra-especially everyone who exclaimed to me, “Wait, are you that CA3blog guy?!”

A couple highlights and random observations:

  • The theme of this year’s conference was technology. Former Third Circuit Judge Chertoff’s keynote address focused on data, privacy, and the doctrinal challenges that lie at their intersection. And fellow Garth clerks Orin Kerr and Harvey Rishikof expanded on the topic in a dazzling presentation the next morning, as did several other sessions.
  • Howard Bashman‘s How Appealing blog got a nice little Supreme Court shout-out. During Justice’s Alito’s lunchtime fireside chat with Chief Judge Smith, Alito was confessing to something or other. Maybe it was his strategy for how to interrupt lawyers at Supreme Court argument? Anyway, Alito joking pleaded for secrecy, and said something like, “Now, I know Howard Bashman is here today, but …”
  • Judge Scirica received the prestigious 2017 American Inns of Court Professionalism Award for the Third Circuit. (The press release is here.) In his acceptance remarks, Scirica spoke movingly of the importance of an independent judiciary and the critical role the practicing bar and the academy have to rise to the judiciary’s defense when its decisional independence is unfairly attacked.
  • While Judge Jordan was presenting the award to Judge Scirica — he described himself as “a devout member of the Tony Scirica fan club”  — Chief Judge Smith playfully leaped over and rubbed Jordan’s bald head. Jordan said something like “I knew that was coming.” Then, during the dessert reception that night, I saw Smith do the same thing to Judge Ambro’s far-from-bald head. This, friends, is a collegial court.
  • The Third Circuit’s low oral argument rate is a sore subject for many lawyers, and during the last session of the conference a lawyer in the audience made a plea for more oral arguments. In response, panelist Judge Shwartz explained that any one judge on the panel can call for argument, so when the court doesn’t grant argument that means all three agreed. She said the briefing was usually excellent and many appeals involved straightforward issues. She also said that she is mindful of how much work preparing for oral argument is for the lawyers.

It was a tremendous event, and I’m looking forward to the next one already.

Register before Friday for Third Circuit conference and save $55

The Third Circuit Judicial Conference is just three weeks away. The conference is April 19 to 21 in Lancaster, PA. Nerdy hearts from Erie to St. Thomas are a-flutter.

The conference registration page says that the fee for registration is $495 “before March 31” but goes up to $550 “AFTER March 31.” Appellate sticklers are left wondering what the rate is on March 31. But, to be safe, register by tomorrow.

And, hey, the $55 you save will more than pay for your annual Third Circuit Bar Association dues.

 

Alito, Chertoff among presenters at 2017 Judicial Conference

Registration is now open for the Third Circuit judicial conference, April 19 to 21 in Lancaster PA. The link to register is here.

The conference agenda also is out, link here. The keynote speaker will be Michael Chertoff, while Justice Alito will be back again to present the American Inns of Court Professionalism Award. Other highlights on the program include sessions on implicit bias, technology and rights (including Judge Hardiman and Orin Kerr), class actions (with a star-studded panel), and much more.

I’m particularly looking forward to the closing session, presented by the Third Circuit Bar Association, entitled What Attorneys Hope Judges Know and Vice Versa. The moderator is David Fine, and the panel is Judge Shwartz, District Judges Jones and Mannion, and top practitioners Charles Becker, Lisa Freeland, Dennis Suplee, and James Wade.

Early-bird registration is $425 for attorneys. After February 15 it goes up to $495, so tarry not!

Will the Third Circuit start posting oral-argument video? Highlights from the Third Circuit’s Judges and Journalists program

Yesterday the Third Circuit hosted a day-long dialogue in Philadelphia about media coverage of the federal courts called Judges and Journalists. I was there all day and had the honor of presenting on one of the panels. It was a fantastic event.

The judicial turnout was strong. Chief Judge Smith and Judges Krause and Roth were there all day, and Judges McKee and Chagares were there too, along with a bevy of district-court and state-court judges. (I sat next to a judge who worked on a David Bowie sewing project all morning.)

Oral argument video

The Ninth Circuit posts videos of its oral arguments on youtube. Yesterday an attendee asked why the Third Circuit doesn’t do that, too. Chief Judge Smith responded, “Stay tuned.” Pressed by the moderator what that meant, the Chief gave a friendly no-comment. I then pointed out that the Third Circuit website already makes it easy to access audio of oral arguments. Chief Judge Smith responded, “Thank you, Matthew — but stay tuned.” Make of that what you will.

Linda Greenhouse’s keynote

New York Times legal columnist Linda Greenhouse gave the lunchtime keynote, introduced by Chief Judge Smith who described her as “truly a major figure in the law.” Her theme: judges and journalists are “in the same serious business,” both doing their best to make sure the public has an understanding of the law. When the courts and media find ways to work together in this common enterprise, she said, “everybody wins.”

Greenhouse described a Ninth Circuit judge’s shock when he learned that she’d had lunch with Justice Breyer; she said she decided to shock him some more by telling him Breyer had the Supreme Court press to lunch every year. And Chief Justice Burger held regular lunches with the Supreme Court reporters, a practice that Chief Justices Rehnquist and Roberts continued. The lunches are nuts-and-bolts conversations about what reporters need, what is the best thing the Court could do for them, etc. Greenhouse said that two recent changes — identifying individual Justices in the argument transcripts, and posting those transcripts the same day as the argument — both resulted from those lunches.

No surprise: Greenhouse is an avid How Appealing reader. When I was introduced to her before her talk as the author of this blog, she said to me something to the effect of, “Oh, yes. That’s one that Howard Bashman frequently links to, isn’t it?”

Some other highlights

  • Both Chief Judge Smith and Judge McKee expressed dismay at how circuit judges are painted as political partisans. Smith (who described himself as a “news junkie”) said a pet peeve of his was when articles identify which judges were nominated by Democratic or Republican presidents, which he said serves only to imply that the decision was ideologically or politically driven. Smith said McKee was one of his very best friends, and he noted they agree on 95 percent of their cases.
  • Smith and McKee (both former trial judges) also agree about how hard criminal sentencing is. McKee said its the “hardest thing judges do and number two is not even close.” Smith noted that people say ‘lock ’em up and throw away the key,’ but “people have no idea how really difficult sentencing is,” and there is “no more excruciating experience than sentencing a person.”
  • New York Times assistant general counsel David McCraw discussed his recent viral letter responding to Donald Trump’s threat to sue the Times for libel for reporting two women’s accusations that Trump had touched them sexually without their consent. He said his career flashed before his eyes when he saw the Times’s CEO coming for him just after the letter was published, but the (British) CEO just said, “Brilliant, brilliant. But I’ll never understand why you Americans capitalize after colons.” He also movingly described a letter he received from Martin Luther King Jr.’s lawyer on how much it meant for the Times to stand up, then and now.

Congratulations to the main organizers — Judges Krause and Rendell, Circuit Executive Margaret Wiegand, and Chris Satullo — for a first-rate event.

Judge Hardiman will present at 2016 Federalist Society convention

Third Circuit Judge Thomas Hardiman will be a speaker at next month’s Federalist Society annual lawyer’s convention. The topic of the convention is “The Jurisprudence and Legacy of Justice Scalia.” Justices Thomas and Alito also will be speaking along with an impressive list of judges, lawyers, and and practitioners. Marcia Coyle has a National Law Journal story on the convention here.

Foolishly, the event’s webpage does not list Judge Hardiman among the five circuit judges (and one district judge and one state judge) named as “Speaker Highlights.”

Upcoming program — Judges and Journalists

The Third Circuit today announced a day-long event being held November 14 at the National Constitution Center in Philadelphia. The event is billed as “a dialogue on accuracy and access,” and the keynote speaker will be New York Times columnist Linda Greenhouse. Other presenters will include Third Circuit Judges McKee, Smith, Krause, and Rendell, as well as top national and local journalists.  Registration is free and includes lunch and a cocktail reception. The complete agenda is here.

I’m honored to be on a panel discussing topics on the horizon in the courts with Edson Bostic, Lawrence Lustberg, and Stephanie Resnick, moderated by Gaetan Alfano.

Space is limited, register online on the Third Circuit website, here.

 

Pittsburgh’s federal courthouse to be renamed tomorrow for Judge Weis, “the nicest judge”

Tomorrow morning the Third Circuit will hold a special session to rename Pittsburgh’s federal courthouse for former Third Circuit Judge Joseph F. Weis Jr., this charming Triblive.com story by Brian Bowling reports. Judge Weis died last year at 91, the year after he retired — his obituary, which quotes Judge Hardiman, is here.

From the story:

He’s not the first federal judge to have his name on a courthouse, but Joseph F. Weis Jr. could be the nicest judge to receive the honor.

“He never lost his humility,” said Roslyn Litman, a charter member of the Academy of Trial Lawyers of Allegheny County.

* * *

Litman, a Downtown attorney, cited Weis’ work in helping found the academy and spending countless hours on its mission of improving relations between lawyers and judges in the Western District of Pennsylvania.

“He uniquely represents the spirit of cooperation between the bench and the bar … by the work he did with the academy and the bar association,” she said.

Judge Krause discussing ethics Nov. 13

Third Circuit Judge Cheryl Ann Krause is leading an ethics discussion over lunch at a White Collar Practice Conference being put on by the Pennsylvania Criminal Defense Lawyers. The conference will be at the Union League in Philadelphia. The luncheon with Judge Krause will be on Friday, November 13 at 12:40.  Attendees get 1/2 hour of CLE credit, too.

Some notable Third Circuit practitioners also are presenting at the conference, including Ellen Brotman, Lawrence Lustberg, and Robert Zauzmer.

Details and registration here.

Filing CA3 emergency motions during the court closure

Starting today, the Third Circuit is closed through September 29 due to the Pope’s visit to Philadelphia. The court posted instructions on its website for filing emergency motions during the closure:

The Clerk’s Office Will Close Thursday, September 24 And Will Reopen On Tuesday, September 29, 2015. For Emergency Motions, I.E. Motions Requiring Action Before Thursday, October 1, During This Time Call 267-299-4903 Or 267-299-4904 And Leave A Message Detailing The Nature Of The Emergency And Leaving A Contact Number So That The Attorney On Duty Can Respond. No Administrative Stays Will Be Issued In Immigration Cases From September 24 Until September 29. If An Emergency Stay Is Needed In An Immigration Matter, Please Call The Emergency Number. (See Below Closure Notice Under News & Announcements For Additional Information.)

An aside for my fellow typography nerds: my theory is that this was written by a clerk who is bitter about having to read lawyers’ briefs filled with hard-to-read Title Caps Headings and seized this opportunity for a little revenge.

Sentencing advice from Chief Judge McKee

I’m attending the US Sentencing Commission annual seminar now under way in Philadelphia.​ One of the panels yesterday was A View from the Appellate Bench, featuring CA3 Chief Judge McKee.

Notable among the points made by Chief Judge McKee:

  • He encouraged defense counsel to get the defendant to communicate his humanity. Putting a real human face on the defendant is helpful and necessary for sentencing.
  • He almost never looks at the pre-sentence report when deciding a sentencing appeal. CA11 Judge Pryor said in his experience former district court judges tended to look at PSRs while those without prior district court service tended not to. So don’t write your brief assuming all your judges will also read the PSR.
  • He observed that, even though CA3 is not one of the circuits that formally presumes a within-Guidelines sentence is reasonable, in the end it probably comes out that way. He could not recall a within-Guidelines sentence CA3 ever found substantively unreasonable.
  • He strongly believes in 18 USC 3353’s parsimony principle (“a sentence sufficient, but not greater than necessary“), although he observed it is very difficult to apply. CA11 Judge Pryor, perhaps less of a strong believer in sentencing parsimony, had a chuckle over his own comment that it should be called the Goldilocks principle instead.
  • He reiterated his view that PA’s sentencing framework is far superior to the federal sentencing guidelines.
  • He feels it would be helpful to the circuit judges if sentencing judges explained what it is they were trying to achieve. He gave an example of a judge who imposed an above-Guidelines sentence and explained that his reason was to incapacitate the defendant as long as possible, and that was helpful to him in assessing that sentence’s reasonableness.
  • He agreed with fellow panelist CA6 Judge Gibbons that judges should not refer to defendants by their first names. He commented that someone who does that shouldn’t be a judge.
  • Also of note, Judge Gibbons reminded defense counsel of the importance of candor, noting that when you tell the court half the story and the court finds out the full story, that won’t be helpful to your client. She also decried the epidemic of plain-error issues on appeal caused by failing to object below.

Housekeeping note

I am attending the U.S. Sentencing Commission’s Annual National Seminar the rest of this week, so I’ll be delayed in posting new opinions the next couple days.

Among the presenters will be Chief Judge McKee and 2014-CA3-conference-presenter Judge Gleeson EDNY. I’m hoping to see other CA3 practitioners there too.

Judicial conference wrap-up

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Yes, this really is the Hershey Lodge’s bathroom wallpaper.

Last week was the Third Circuit judicial conference in Hershey. I was there. A few hyper- hyperlinked thoughts:

  • The circuits have come under fire for their judicial-conference spending (CA9 held theirs in Maui in 2011: oops), but I saw nothing to criticize here. Especially since CA3 foisted the cost of receptions off on outside groups including the Third Circuit Bar Association. I agree with Justice Kennedy that “The circuit conference is a prudent and proper exercise of the judicial function.” Even in this time of federal judicial budget struggles, judges and lawyers need a forum to grapple with systemic legal issues,.
  • Chief Judge McKee’s influence on the program was evident and, in my opinion, very positive.
  • Justice Alito: budding stand-up comedian. I did learn two things from his talk: (1) the Court has an internal deadline of the end of May for majority opinions and June 15 for dissents, and (2) the Justices have a no-talking-about-cases-at-lunch rule. During Alito’s talk, I kept rolling my eyes and mouthing “Not true,” but no one noticed.
  • SG Verrilli said the reason the US sided with the town in the recent legislative-prayer case was Congress’s interest in keeping its own opening prayers. I found that wacky, but this time I kept it to myself.
  • EDNY judge John Gleeson stole the show with his talk on innovative sentencing. Sixty-year-olds aren’t Scotus nominees, but Gleeson sounded Scotus-caliber to me.*
  • Cheryl Krause, whose CA3 nomination is pending before the full Senate, was there, often with a sitting judge or 2 at her side. On the rumor front, I overheard that Becker’s district court chambers have been designated for her, which may reflect the confidence that she’ll be confirmed.
  • Screened at the conference was a documentary film on criminal re-entry called Pull of Gravity. Website here, trailer here, reaction video here. The odd part: the Philly US Attorney’s office was the film’s executive producer (what sequester?), and Executive AUSA Robert Reed is its biggest champion. The good part: the film itself is eye-opening and honest. Look for it.
  • If you’re in Hershey for a meal, try Troeg’s Brewery tasting room; Nugget Nectar is the beer-nerd choice.

* Update: for more on mandatory minimums, see yesterday’s thoughtful post at Hercules & the Umpire.

McKee to give Philly bar talk

Chief Judge McKee will speak at the Philadelphia Bar Assoc.’s upcoming quarterly luncheon meeting. He’s giving the Judge A. Leon Higginbotham Jr. Memorial Public Interest Lecture.

The meeting is June 9 at the Hyatt at the Bellevue in Philadelphia. Tickets are $65 for PBA members, available here.

Judicial conference registration fee goes up this week, and my embarrassing Verrilli story

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It will cost $55 more to register for the 2014 Third Circuit Judicial Conference if you wait until after April 18. Until then, its $480.

The conference is May 7-9 in Hershey. Current agenda here. Highlights include a talk by Justice Alito, a fireside chat with Solicitor General Verrilli, and a screening of the documentary Pull of Gravity.

Verrilli stars in one of my all-time embarrassing lawyer moments. A couple years out of law school, I played a minor role in helping a local lawyer prepare for a Supreme Court argument. Somehow I got to sit in on a moot in D.C. that Verrilli was hosting at Jenner. Any non-fool would have sat and learned, quietly. But no. There I was, earnestly explaining why I disagreed with Verrilli about something or other. His main reaction, I imagine, was pity.

So I’ll be there for his chat–silently.

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The fool