Howard J. Bashman's appellate columns, etc.

Your Third Circuit Appeal, From Start To Finish, In Ten Easy Steps

By Howard J. Bashman
Monday, August 12, 2002
Lawyers who do not regularly practice before the U.S. Court of Appeals for the Third Circuit often ask me what is going to happen next in their pending or soon-to-be-filed appeal to that court. This month's column sets forth a comprehensive account of how the Third Circuit processes appeals from beginning to end.

1. Docketing the case: After a notice of appeal to the Third Circuit is filed in a U.S. District Court located in Delaware, New Jersey, or Pennsylvania (or in the District Court for the U.S. Virgin Islands), the district court's clerk's office dockets the appeal and forwards a copy of the notice and the district court's docket sheet to the Third Circuit. When the Third Circuit receives those documents from the district court, the Third Circuit dockets the appeal and assigns an appellate docket number.

The Third Circuit's clerk's office immediately sends a case opening letter to counsel for all parties and former parties in the district court. The case opening letter advises that the Third Circuit has docketed the appeal and sets forth deadlines by which counsel must file various forms in order to participate in the appeal. Counsel for all parties receive with the case opening letter an entry of appearance form, a corporate disclosure statement form, and (if the recipient is not admitted to practice in the Third Circuit) a bar admission application.

The letter also sets forth deadlines by which counsel for the appealing party must file a transcript order form (even if no transcript exists), a civil or criminal information statement providing details about the case, and a concise statement of facts and issues in civil cases potentially subject to appellate mediation. If the parties opposing the appeal are dissatisfied with the appellant's information statement or concise statement of facts and issues, they can then file their own versions of those forms.

If a case is not subject to appellate mediation, this case opening letter may also include an order establishing a briefing schedule. Finally, if the appeal appears to have been taken from a non-appealable order, or if the appeal appears to have been taken after the time for appeal has expired, the initial letter may ask the parties to address promptly whether the Third Circuit possesses jurisdiction over the case.

2. Appellate mediation: Appeals in civil cases that involve claims for money or that otherwise appear capable of settlement are often directed into the Third Circuit's appellate mediation program before a briefing schedule issues. If an appeal is selected for mediation, counsel will receive a mailing that directs the filing of confidential settlement position statements. The mediation program's files are confidential and are not available for review by any of the Third Circuit's judges who will decide the appeal if mediation fails.

The Third Circuit's mediation program can be very effective in helping to settle even especially difficult cases. If unsuccessful, however, mediation will cause an appeal's progress to be delayed for several months, because no briefing schedule issues while an appeal is in the mediation program. A party that believes settlement to be impossible and that does not wish to have an appeal's resolution delayed can send a letter at the start of the mediation process asking that the appeal be removed from mediation and returned to the clerk's office for issuance of a briefing schedule.

3. The appellate briefing schedule: Once the Third Circuit issues a briefing schedule, the appealing party typically has forty days from the date of the order to file the brief for appellant. The opposing party then has thirty days to file the brief for appellee. If the appealing party wishes, it can file a reply brief within two weeks of when the brief for appellee has been filed.

Many lawyers overlook that all parties to an appeal have a shared obligation to agree on the contents of the joint appendix, which is to be filed with the appellant's opening brief. The Third Circuit strongly disfavors appeals in which the opposing parties each try to file a separate appendix. It is important to put into the appendix all portions of the trial court's record that the judges assigned to the appeal will need to see. Unlike many other state and federal appellate courts, the Third Circuit rarely obtains the complete trial court record in cases where all parties have counsel. Thus, if a document is not in the appendix, the appellate judges probably will never see it.

4. Motions: The period before briefs on appeal are due tends to be when most motions are filed. If you file a motion in a Third Circuit appeal, it will either be decided by the clerk's office, by a motions panel not assigned to decide the appeal on its merits, or by the panel that will decide the merits of the appeal. The clerk's office usually decides procedural motions, such as motions that seek a short extension of the due date for a brief, motions that seek to increase the word count limit of a brief, and motions to file a supplemental appendix. A three-judge motions panel typically decides more significant motions, such as those seeking to dismiss an appeal for lack of appellate jurisdiction. Once an appeal is assigned to a three-judge panel for a decision on the merits, the merits panel will decide any motions filed thereafter.

5. Filing the briefs and the appendix: The Third Circuit provides to all parties helpful checklists of what the parties' briefs and the joint appendix must contain. If your brief omits a required element or fails to have the proper cover, the Third Circuit's clerk's office will ask you to correct the deficiency. A lawyer who makes these sorts of errors may communicate to the judges assigned to the appeal that he or she is not well versed in appellate practice. As always, the best advice is to get it right the first time.

One especially important requirement is that the brief for the appealing party must contain as an attachment copies of all of the opinions and orders that are before the Third Circuit for review. The trial court's rulings usually are the most important part of any appeal, and the Third Circuit's judges have adopted this attachment-to-the-brief rule to ensure that when the judges carry the parties' briefs away from the office, the brief for appellant will include copies of all pertinent trial court rulings.

6. Assigning an appeal to a three-judge merits panel: The Third Circuit's clerk's office late each year issues a calendar scheduling three-judge panel assignments and sitting dates for the upcoming year. The court's active judges are randomly assigned to each panel for each sitting, and at least six weeks are usually provided between sittings.

Once the parties start the briefing process, the clerk's office forwards to an upcoming merits panel the corporate disclosure forms filed by the parties to the appeal. The judges on the panel will then review the forms to see whether they are disqualified from the appeal. If a disqualification is noted, the appeal will then be sent on for conflict screening to the judges assigned to the next available sitting.

7. Scheduling oral argument: Approximately six to eight weeks before a panel will hear oral arguments, the briefs in nearly forty appeals will be sent to the three judges assigned to the panel. The judges assigned to that week's cases will then begin reviewing the briefs to decide whether to request oral argument. This represents the first time that anyone at the court will look at the actual content of the briefs other than to ensure that the required elements are present. The merits panel can have the clerk's office send letters to counsel for the parties raising issues that were insufficiently addressed in the briefs.

If any one judge wants oral argument, the case will be scheduled for argument. Cases that are not selected for oral argument have a higher rate of affirmance, so oral argument is an encouraging sign for the party that lost in the trial court.

After the briefs have been filed, but in advance of oral argument, the Third Circuit's clerk's office will send at least three separate letters to counsel for the parties. The first letter lists several weeks during which argument or submission on the briefs could occur and asks the lawyers to advise immediately of any potential scheduling conflicts. Thereafter, a second letter is sent advising the lawyers of the exact date on which the appeal is likely to be argued or submitted. Finally, approximately ten days before the date of oral argument, the clerk's office sends counsel a letter advising whether oral argument will occur and disclosing the identity of the three judges assigned to decide the merits of the appeal.

8. Conducting oral argument: If your case is selected for oral argument, the notice will provide details about where the argument will take place and when counsel is to report to the courtroom. The notice usually will not disclose the order in which cases will be argued, so counsel desiring that information should call the Third Circuit's clerk's office late in the afternoon on the day before the argument or on the morning of the argument. Oral arguments are audio-taped.

After the briefs have been filed, counsel can draw supplemental authorities to the Third Circuit's attention via a Federal Rule of Appellate Procedure 28(j) letter. Such letters can be filed before or after oral argument, and they tend to be more effective when reporting newly-issued decisions rather than older decisions that counsel previously managed to overlook.

9. The Third Circuit's ruling: The Third Circuit will advise counsel of its ruling via the mail. Each weekday afternoon the Third Circuit also posts opinions on its Web site, http://www.ca3.uscourts.gov/. Finally, the Third Circuit is experimenting with a system that would send an email to lawyers advising that a decision in their case has issued and providing a link to the ruling on the Third Circuit's Web site.

10. Post-decision proceedings: After the Third Circuit decides an appeal, the court will issue its mandate seven days after the time for seeking rehearing or rehearing en banc has expired unless a party has filed a timely rehearing petition. If rehearing is sought, the mandate will issue seven days after rehearing is denied. A motion for stay of the mandate pending the filing of a petition for writ of certiorari in the U.S. Supreme Court can be filed, but such a stay should only be sought where the mandate's issuance will work some specific hardship on the losing party (e.g., imposition of the death penalty, deportation, destruction of unique property, payment of money that might not later be recoverable from the opposing party, etc.).

Once the Third Circuit's mandate issues, the Third Circuit's involvement in the appeal has come to a close.

This article is reprinted with permission from the August 12, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.