18 May 2015
Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit prefers the element of surprise. At least for oral arguments.
The Seventh Circuit, based in Chicago, doesn't reveal the identities of the judges assigned to a case until the morning of oral arguments. Lawyers, Easterbrook said, should "prepare to face the circuit as a whole."
"Even with this policy, many lawyers try to make judge-specific arguments ('You wrote the opinion that said…') and have to be reminded that opinions speak for the court, not for their authors," the judge said in an email to The National Law Journal. "Ad hominem arguments are out of place."
The Seventh Circuit is in the minority. Of the 13 federal appeals courts, only three — the Fourth, Seventh and Federal circuits — wait to disclose the three judges assigned to a case on the day it is argued. The other circuits reveal their panels days or weeks in advance.
In the First Circuit in Boston, lawyers get a week's notice. In the Eighth Circuit in St. Louis, one month. The D.C. Circuit, until recently, had the most generous policy: The court announced the panel when it set a date for arguments — several months ahead of the hearing. Last year, the court switched to notifying counsel 30 days out. It formalized the change this month in its handbook.
Appellate lawyers told the NLJ that they generally prefer knowing the judges' identities in advance. The attorneys said they can focus research on issues that might interest a particular judge. They also can prepare for any personality differences within panels.
"Well-prepared counsel can sometimes say, 'You know, Judge Smith, I know you over time have been concerned about this issue and here's why that's not a problem,' " said Gibson, Dunn & Crutcher partner Helgi Walker.
In courts that announce panels in advance, judges and officials interviewed last week said they hadn't found any downsides. Chief Judge Theodore McKee of the Third Circuit in Philadelphia, which reveals panels about 10 days before arguments, said he didn't mind if lawyers tailored arguments to the judges on the panel.
"It's not pandering as much as being able to craft arguments to address particular concerns a judge might have," McKee said. Lawyers won't impress McKee by citing his own cases back to him, though. "If it's really a case that is pertinent, I would have reread that case in advance anyway," he said.
The Eighth Circuit began announcing panels one month in advance about 20 years ago, at the suggestion of lawyers, according to clerk of court Michael Gans.
Some judges were concerned that lawyers might use the extra time to "judge shop" if they didn't like the panel, Gans said. For instance, trying to delay hearings to get a new panel. But that fear didn't materialize, he said.
Gans advises lawyers to listen to audio recordings of past arguments to get a sense for how judges ask questions. The early notice doesn't seem to affect the substance of arguments, he said, because lawyers are bound by briefs they filed before learning the judges' identities.
The Sixth and Eleventh circuits provide about two weeks' notice. Six courts — the First, Second, Third, Fifth, Ninth and Tenth circuits — identify the panel the week before arguments.
Knowing who the judges will be can provide peace of mind, said Dan Himmelfarb, a partner at Mayer Brown and co-leader of the firm's litigation practice in Washington. It's not a make-or-break issue, but "I would rather know in advance than not, if for no other reason than it's one fewer unknown," he said.
"If you're arguing in the Seventh Circuit, for example, where you don't know until the morning of arguments, you're invariably going to be nervous if you're going to have [Judge Richard] Posner or Easterbrook on the panel," Himmelfarb said. Those two judges, he said, are "brilliant … and, frankly, tough at oral arguments."
Posner told the NLJ that he thought it was "unhealthy" for the appellate courts for lawyers to prepare arguments tailored to certain judges.
"That will draw the panels apart, because the lawyers will decide, you know, who's the critical judge or the two critical judges in the panel of three that we really have to get at to win," Posner said. Lawyers get creative to take advantage of the time they do have before they step up to the lectern. Thomas Goldstein of Washington's Goldstein & Russell said he'll sometimes organize important rulings by judge, making it easier to highlight cases once he learns who he will argue before.
"We'll have people on standby to do some last-second research," Goldstein said. "You always want to have the best sense of the thinking of your decision-maker."
Mayer Brown partner Timothy Bishop said that, if he has time, he might send an email to colleagues asking for last-minute advice about judges.
"Does it make any real difference to the outcome of the case? No, I don't think it does," Bishop said. "But my view is there's absolutely no harm, and some benefit, in knowing the panel in advance so that you can look at their opinions on related issues."
A bad lawyer will spend too much time focusing on one judge, Bishop said, but "good lawyers will always be cognizant that the important thing is what the court's precedents say."
Chief Judge Mary Beck Briscoe of the Tenth Circuit in Denver said that when she was a federal prosecutor during the 1970s and 1980s, the Tenth Circuit didn't reveal panels until the morning of arguments.
By the time she was appointed to the bench in 1995, the court had changed its practice to notify lawyers one week in advance.
"It's a consideration to counsel to give them some forewarning," Briscoe said. "I don't know if there's a lot of tailoring of arguments that occurs as a result of knowing the names of individuals on your panel. Your case is your case. You have your facts and your law, and your brief that you've already filed. So it's a little late to start pulling cases."
Reprinted with permission from the May 18, 2015 edition of The National Law Journal © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.