Thursday, April 14, 2022

Appellate Kvetching

Today's DJ has Myron Moskovitz in Biting the Hand that Feeds Me: Part I, in which Myron decides to take the plunge and openly criticize appellate court practices. His first gripe is "ambush at oral argument": 

  • Over the years, I’ve participated in, consulted on, and watched many, many oral arguments in appellate courts. They occasionally provide stimulating theater, but only rarely do they have any effect on the outcome. In California courts, the judges have already drafted the opinion before they set the case for oral argument. After the argument, they might change a few words here and there, but they rarely switch the bottom line from “Affirmed” to “Reversed” or vice versa.
  • I’ve fully endorsed the slowly-growing practice of issuing tentative opinions and “focus letters” that let the attorneys know before oral argument what the judges see as the key issues. This makes the argument much more meaningful, and sends the message that the court is truly interested in getting attorneys’ input into how the appeal should be resolved.
  • My current gripe is about what sometimes happens when the court fails to provide such advance notice.
  • But come on. How many of us are quick enough on our feet to come up with a persuasive rebuttal to a new twist we’ve never seen before – on the spot, with no prior thought about it, with three robes staring at you, waiting to see if you can talk them out of a position they’ve already decided to take in their written opinion?
(Myron is also quoted in today's DJ in Biden’s circuit nominee from Washington has varied background)