Tuesday, July 31, 2007

Ninth Circuit Rule Changes

Effective July 1, 2007, the Ninth Circuit has promulgated amendments to its rules in several areas, as linked here. Two changes are of special interest along with some minor adjustments.

First, the continuing debate regarding the contents of Excerpts of Record came to at least a partial resolution. Some judges want the Excerpts to give them every scrap of paper in the record, while others want to be able to tuck the briefs and Excerpts under their arm as they board the airplane for their next calendar. The compromise is to require that, for Excerpts of more than 75 pages, the essential documents must be provided in what, in some cases, will apparently be a very short first volume.

The intention for sentencing appeals is a bit mysterious: the essential documents could include the relevant page(s) of the presentence report (if not sealed), the objection and sentencing letters or memorandums on the issue, the transcript deciding the question, followed by the findings of fact order and judgment. But that is not what the rule seems to say, which can be read to simply call for the transcript and any written decision deciding the question as Volume I -- which could be so short it would be more sensibly included as an addendum to the brief. The problem with rules, like Guidelines sentencing, is that one size doesn't fit all.

In commentary, the Court also weighs in on the debate regarding chronology or logic as the organizing principle for Excerpts. The preference is for chronology, unless there is a good reason for a different presentation. The bottom line: think through your Excerpts as you do your brief for clarity and ease of use by the judicial consumer.

Second, the Court ended the grand experiment of 15-judge en banc panels, which had originally been scheduled to last for two years. The additional judges really did not seem to affect the dynamics of argument; there just ends up being more judges who say little or are silent. I wonder if, with so many judges involved, there is a tendency to pay less attention to en banc briefing and argument on the assumption that others will pull the weight. For whatever reason, we are back to eleven-judge en banc panels.

The Court's new rules formalize the good practice of attaching the relevant statute, regulation, or rules at issue as an addendum to the brief, separated by a “distinctively colored page.” The amendments also provide detail regarding Rule 28(j) letters, including the preference that such letters be submitted seven days before oral argument. No last minute computer searches? The amendments also address amicus briefing.

If this isn’t enough excitement for you appellate advocates, we have more: coming soon we have the Supreme Court rule amendments here, which include word limits in addition to page limitations, briefing changes in timing and amicus procedures, electronic filing of merits briefs, and an increase in bar admission fee to $200. The new rules are scheduled to go into effect on October 1, 2007.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


Anonymous Anonymous said...

The modification to the rule on addenda to the briefs (28-2.7)is not new at all, but merely engrafts 28-2.8 as a second paragraph to 29-2.7, apparently without deleting the former. Weird. My view is that the addendum is limited cases requring "study" of the statutes or regs involved, that is, interpretation arguments. Otherwise, it would be a big bother always to include copies of materials as readily available as the cases that are cited in the brief.

Thursday, August 02, 2007 7:59:00 AM  

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