Appellate Advocacy Blog

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

Monday, October 23, 2023

What Happens in the Third Circuit, Stays in the Third Circuit (For Now)

Earlier this year Leah Tedford posted on the Third Circuit's proposed rule change to roll back filing deadlines from 11:59 pm to 5:00 pm. After the Third Circuit adopted the rule, Robert Peck and I engaged in a spirited blog conversation about the change.  Robert was more critical of the change, and he argued for more uniformity among the circuits. I, on the other hand, argued that the court could do whatever it wanted.

Well, according to a recent Reuters story, Robert almost got his wish! Apparently the U.S. Judicial Conference Committee on Rules of Practice and Procedure has had before it, since 2019, a proposal from the now-chief judge of the Third Circuit to make the earlier filing time a nationwide rule.  According to the article, the chair of the Committee wants to wait and see how things work in the Third Circuit before adopting any sort of national rule.  According to the article, part of the Committee's concern was the opposition that the rules changed faced from the bar.

I think that the Committee's decision makes perfect sense. As I expressed in my earlier blogging on this issue, I am perfectly fine with the federal circuits having different rules. Attorneys should always check the rules well in advance of any filing. And many attorneys frequently practice before a wide variety of courts with diverse rules. Just think of attorneys who practice in both state and federal court or in both trial and appellate court. They must know very different sets of rules. 

Moving to the substance of the rule, I actually think that it is a good proposal. I agree with Robert that it will just shift when attorneys decide to burn the midnight oil, but I do think that it allows attorneys who don't want to burn that oil the chance to address key filings that come in during normal working hours. As the mom of two young kids, I try to guard my evenings to spend time with them. Now, I get that I could work on filings after my kids go to bed, but that time is often reserved for chores or a little bit of downtime.  I also get that a 5 pm filing time can be hard if you have to pick up kids from school--I chose my daughter's school specifically because it offered a longer aftercare. Still, in the world of appellate practice it is best to have documents finished well before the filing deadline.  Further, an attorney's decision to burn the midnight oil in advance of filing a brief likely means that support staff needs to be available to also burn that oil to help with any formatting or filing issues.

So, while I encourage the Committee to wait and see how it all works out in the Third Circuit, I hope that it all works out well and a national change is made.

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