Monday, May 3, 2021

PJ Gilbert on the Appellate Process

Today's DJ has much of appellate note:

First, in the Gilbert Submits column, titled Revelations II, PJ Gilbert outlines the appellate "process":

  • opinions are "worked up" by the justices and dedicated research attorneys. Do we answer every argument advanced by a party? Shouldn't the argument be "heard"? Of course not. I mean, not always.
  • The authoring justice then circulates a "calendar draft" to the other two justices on the panel.
  • The day before oral argument the justices in my division sit around a conference table adjacent to my chambers and talk, and occasionally yell, about the cases. It's a stimulating and gratifying experience... most of the time.
  • The next day at oral argument we think we have a firm grasp of the issues. We are an active court and usually ask questions. Is this annoying to counsel? It shouldn't be.
  • We may file the opinion as originally written. But often we may make changes that require analysis of new cases that have been filed after briefing
  • Oral argument may prompt us to change our characterization and emphasis. Question asked ad nauseam, but none the less reasonable: How often does oral argument change the result of the original draft opinion? Not often. Not specific enough? The honest answer? How about, almost never. Petitions for rehearing? Pretty much the same answer, only slightly better odds.
Second, the Exceptionally Appealing column shares The Glorious History of the Committee on Appellate Courts, and urges interested applicants to apply by emailing Committee Secretary Bryce Young at BYoung@DuaneMorris.com by May 31.

Third, Moskovitz on Appeal is up to Appellate Adventures, Chapter 21: "I Won My Appeal! Now What?"
The piece discusses post-opinion matters, such as petitions for rehearing and review:
  • What is the chance a rehearing petition will win relief: "Not much. The judges put a lot of thought and time into writing their opinion, and they're not likely to undo it at this late stage."
  • And why not file rehearing petitions? "If counsel files a petition for rehearing in the court of appeal, sometimes the court improve the opinion by modifying it. Counsel had a weak opinion that might catch the Supreme Court's eye, but now it's not so weak anymore."
  • As for petitions for review, odds of a grant are 3% and it matters "a lot" if the Court of Appeal opinion is published or not. Amicus letters showing how the case is "important to society --or at least a large chunk of it" are helpful in getting review.
U.S. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh may both identify as textualists, but that doesn't mean they always agree on how to interpret a statute's text. In an immigration ruling Thursday, the two Donald Trump appointees spilled 40 pages of ink arguing over the meaning of the word "a."