Monday, September 24, 2018
Today we are featuring a guest post from Kevin Golembiewski. Kevin Golembiewski and his colleague, Jessica Arden Ettinger, recently posted a law review article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, on the Social Science Research Network. This post previews the article.
From 2015 to 2017 I served as a law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit. For those two years I was part of something much bigger than myself. The Eleventh Circuit is not simply a collection of appellate judges—like every appellate court, it’s an institution, with its own unique history, practices, and traditions.
Attorneys who practice before the Eleventh Circuit should keep this in mind. Effective advocacy requires recognizing and taking into account the court’s distinct characteristics and institutional features. For example, the court affords Federal Appendix decisions limited weight, so attorneys should avoid relying on them. Also, as one of the nation’s busiest circuit courts, the court assigns most appeals to a non-argument calendar, so attorneys should approach briefing as if it’s their only opportunity to persuade the court.
To help attorneys navigate the Eleventh Circuit’s unique institutional features, a former co-clerk, Jessica Arden Ettinger, and I recently wrote an article providing advice that is tailored to the court. In the article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, Jessica and I offer our views, as former clerks, on how to draft a compelling brief and present a persuasive oral argument to the court.
We begin the article by examining the Eleventh Circuit’s history, caseload, and decision-making process. In 1981, Congress split the old Fifth Circuit, creating the current Fifth Circuit and the Eleventh Circuit. It assigned twelve judgeships to the Eleventh Circuit. Although the court’s caseload has drastically increased since 1981, it still has just twelve judgeships. Even so, the court resolves appeals expeditiously. The median time between a notice of appeal and a decision in the Eleventh Circuit is just 8.6 months, compared to 9.9 months in the Fifth Circuit and 14.7 months in the Ninth Circuit (the Fifth and the Ninth Circuits are the only two circuit courts with larger caseloads than the Eleventh Circuit). The court achieves this quick turnaround time by utilizing a Staff Attorney’s Office, maintaining a non-argument calendar, and inviting judges from other courts to sit on oral argument panels. In the article, Jessica and I discuss how these case-management techniques shape the court’s review process.
After introducing the Eleventh Circuit, Jessica and I offer advice on drafting appellant briefs, appellee briefs, and reply briefs. In addition to providing advice specific to each type of brief, we offer advice applicable to all of them. In our view, the first step in drafting any Eleventh Circuit brief is to understand the court’s norms and expectations. There are two norms that the court prioritizes: collegiality and candor. The court expects collegiality among its judges, district court judges, and members of the bar. Disparaging the district court, an adversary, or a prior panel’s decision will undermine a brief’s credibility. The court also expects candor. It has thousands of cases to resolve each year—briefs must get to the point and be frank about the appeal’s issues, facts, and applicable law. Grand assertions about an appeal’s legal significance and attempts to spin the facts and the law will backfire. As former Chief Judge of the Eleventh Circuit Joel Dubina once said, “A lawyer should not embellish and exaggerate in the Eleventh Circuit.”
Jessica and I conclude the article by offering tips on presenting oral argument to the court. The court takes a pragmatic approach to oral argument, hearing argument only when it will help the panel decide the appeal. This pragmatic approach informs our advice.
Clerking on the Eleventh Circuit was one of the best experiences that I’ve had as a lawyer. It is an institution that I will always revere. I hope Jessica and my article serves as a useful guide for those who have the privilege to practice before the court.