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.