Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, July 31, 2017

Follow the Rules!

I recently received a link to a Seventh Circuit in-chambers opinion that I thought was worth sharing.  On July 10, Chief Judge Diane Wood issued an in-chambers opinion striking briefs in two cases.  The briefs, one a respondent brief from the Attorney General and the other an appellee brief from the Air Line Pilots Association, were stricken for failing to comply with court rules.  So what court rule did these parties fail to follow?  Circuit Rules 3(c)(1) and 28 on jurisdictional statements. 

This is surprising, as the briefs that were stricken were from an appellee and a respondent.  As Chief Judge Wood explains, however, appellees and respondents have responsibilities too when it comes to the jurisdictional statement.  While appellees and respondents are exempted “from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement,” Seventh Circuit Rules “direct[] that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional  summary in the appellant’s brief is complete and correct.  If it is not, the appellee shall provide a complete jurisdictional summary.’”

As the Chief Judge points out, “The job of the appellee is to review the appellant’s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms.”  So where did the briefs of the Attorney General and the Air Line Pilots Association fall short?  With respect to the Attorney General’s brief, the jurisdictional statement only said that the appellant’s statement was correct, not that it was complete.  Chief Judge Wood explained, “If the Department [of Justice] concludes that Mr. Baez‐ Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief.”  As for the Air Line Pilots Association, while their statement said that the appellant’s statement was complete, but mentioned nothing about correctness.  Chief Judge Wood directed the Association to “review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, . . . supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).”

So what is the moral of this story?  Follow the rules. In both cases, the jurisdictional statements would have been perfectly acceptable if they had two additional words. Now, the parties will have to incur the costs (both in time and money) of filing amended briefs. 

Filing a brief that comports with the rules of the jurisdiction should not be such a difficult endeavor.  As Chief Judge Wood notes in her opinion, the Seventh Circuit even provides a checklist to assist litigants follow the rules.  Other legal writing books or courts provide similar lists or examples.  As lawyers, we can, and should, do better.   

https://lawprofessors.typepad.com/appellate_advocacy/2017/07/follow-the-rules.html

Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink

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