Saturday, January 12, 2008
In the months ahead, law students across the country will venture into the world of appellate advocacy. Too often, they approach the briefs as they approach final exams--trying to spot every possible issue, demonstrating how thoroughly they know the law, as revealed by string citations to dozens of authorities, whether mandatory, relevant, or something else. What many do not learn in law school--or after law school--is the importance of appellate procedure. For example, appellate courts are constrained by the record. If an issue was not raised in the trial court, the appellate court will not review it. There is an important exception, however: issues regarding the court's appellate jurisdiction. The question of the jurisdiction of the court to consider a case may be raised at any point in the proceedings.
Prowling the Internet for a good example to share with my students, I ran across this 2004 response from Seventh Circuit judge Frank Easterbrook to one of the questions on Howard Bashman's 20 Questions for Appellate Judges site. Describing a rule that he always enforces, Judge Easterbrook wrote:
Determining whether jurisdiction exists should be the first order of business for every federal judge. Without jurisdiction, judges are just pundits. . . . Lawyers who ignore these requirements--or, worse, seek to pull a fast one--are imposing intolerably on their adversaries, on the courts, and on other litigants farther back in the queue for judicial attention.
Last year my clerks gave me a sketch, done by a cartoonist, that captures my attitude: a lawyer is disappearing through a trap door, which I opened by pushing a button on the bench. On his way down (way, way down; the Seventh Circuit's courtroom is on the 27th floor of the Dirksen Courthouse) the lawyer exclaims: "BUT, YOUR HONOR, JURISDICTION WASN'T RAISED BELOOOOOWWW...!" No, indeed; but lawyers who follow national and local Rules 28(a) will cover the subject on appeal. (I often use the metaphor when speaking to groups about appellate advocacy. The phrase "Your Honor, I wasn't trial counsel so I don't know what's in the record" also opens the trap door. A voice-activated switch should automate the process, but I can't persuade the General Services Administration to install a trap door. GSA expresses concern about disrupting ongoing trials if an appellate lawyer should pass through district courts on the way to the street.)