As a lawyer cited the record during oral argument at the U.S. Court of Appeals for the Fifth Circuit, Judge Catharina Haynes clicked on her iPad and looked up the record being discussed.
Judge Haynes interrupted. “Counselor, you are leaving out the word ‘not’ in your reading of the document,” she said.
“I don’t think so,” the lawyer responded.
“You are – I’m looking at it right now,” the appellate judge answered.
Three Fifth Circuit judges – Judge Haynes, Judge Gregg Costa and Judge James Ho – said lawyers often made critical mistakes when they take cases to the federal appellate court.
“Credibility is everything,” Judge Ho told the Northern District of Texas Federal Bench Bar Conference held Friday. “The second that you misquote or leave out critical citations[, it] will be held against you. It borders on unethical conduct.”
For an hour, the three judges provided extraordinary behind-the-scenes insight into the operation of the Fifth Circuit to the 500 lawyers who attended the in-person conference.
North District Judge James Wesley Hendrix, the panel moderator, asked the judges if they took a position on introductions in briefs.
“I was unaware that this was even an issue,” Judge Haynes responded. “We discuss a lot of issues, but never the appropriateness of introductions.”
Judge Costa and Judge Ho agreed, saying the introductions are akin to someone arriving at a party and suddenly being invited into a conversation.
“If it is done well, introductions are very helpful,” Judge Ho said. “Introductions might tell us where this issue fits into the larger body of law. We are interested in getting this case right but also showing the impact this case will have on other cases.”
“I’m a huge believer in introductions, and I don’t know a single judge who would strike a brief because it has an introduction,” Judge Ho said.
The trio of judges also tackled appellate briefs – the good and the bad.
“Briefs too frequently have too many details that don’t matter,” Judge Costa said. “Every sentence should mean something. Don’t attack the other side, and don’t attack the judge.”
Briefs, he said, are about the legal past and citing precedent, the legal present and the specific case being argued, and the legal future and what a decision would mean and the impact it would have.
“Start at a basic level, and don’t use industry lingo,” Judge Costa said. “What is the rule we should apply, and what are the limits?”
Judge Haynes said many briefs omit the district court’s ruling.
“There have been times when I read 50 pages and [the authors] still don’t address what they want,” she said. “I know you think we sit around a table for a month discussing your case, but we have other cases to deal with.”
Oral Arguments – When and Why
About 30% of Fifth Circuit cases in which the parties request oral arguments get them. In civil cases in which both sides have counsel – no pro se cases – the Fifth Circuit grants oral argument a little more than 50% of the time, according to Judge Costa.
The Fifth Circuit uses three-judge panels to screen cases that seek oral argument, which is granted if only one of the three judges approve.
Those three judges, however, are not necessarily the panel that will handle the case. The Fifth Circuit can appoint three different judges to preside over the case, and those three judges can agree with the screening panel or make the decision on their own.
“There is no science to it,” Judge Costa said. “Some judges value oral arguments more than others.”
Judge Haynes said lawyers need to know the cases they cite in their briefs. She said she asked a lawyer during argument about a case and the lawyer responded that he wasn’t familiar with the case.
“But you cited the case in your brief,” Judge Haynes answered. “Also, answer the questions that the judges ask. If you don’t know the answer, just admit it.”
Judge Costa agreed.
“If the judge asks a question, it is the most important issue for you at that moment,” he said. “I’ve had a lawyer say to me during arguments, ‘I appreciate the question, but I have more important issues to address.’ No, I don’t think so.”
Judge Ho said many lawyers try to avoid answering hypothetic questions.
“The lawyers say that [the] hypothetical is not their case, but we also need to address how our decision will have broader impacts.
Judge Ho said the appellate judges on the panels typically do not discuss cases in-depth prior to oral argument.
But Judge Costa said “the vast majority of our cases are decided [by the three-judge panel] right after oral argument, at least with an initial vote.” He said judges sometimes change their minds later and some withhold judgment.