2020 Keep Seminar Part I: Thoughts from the Court of Appeals
On September 17, 2020, the San Diego Chapter and the Southern District of California held Part I of the Sixteenth Annual Judith N. Keep Federal Civil Practice Seminar. The Keep Seminar honors Judge Judith Nelson Keep, who was the Southern District’s first female judge and first female chief judge. With 550 participants, the seminar began with a tribute to Judge Keep from Judge William Enright, who passed away earlier this year. In the second of two panels, three judges of the Ninth Circuit Court of Appeals joined the event to discuss practice before the Ninth Circuit during the COVID-19 pandemic. Judge M. Margaret Mckeown, Judge Kenneth Lee, and Judge Patrick Bumatay shared how the Court has adapted to COVID-19, what they wish they had known as practitioners, and their general advice for brief writing and preparing for oral arguments before the Court. The written materials for this panel can be found here.
How the Ninth Circuit has Adapted to the COVID-19 Pandemic
Our very own FBA San Diego President-elect Rebecca Church began the discussion with Judge McKeown. Judge McKeown commended the Ninth Circuit's ability to pivot quickly. She spoke about many judges’ familiarity with video and live streaming technology before the pandemic. So far, the Court has handled the transition very well. From the start of the pandemic through August, the Court had heard over 500 oral arguments. According to a poll of attorneys who have participated in the process, approximately 85% of arguments have been held via video. Of the attorneys polled, the majority preferred video, and nearly half of attorneys polled said video arguments were just like in-person arguments. And in terms of engagement with the Court, approximately 78% of attorneys polled said engagement with the Court was the same as before.
Judge McKeown also commended the Court’s ability to promptly give required technical details to litigants to avoid unnecessary delays. She also clarified that the Ninth Circuit has always had the option to hold arguments via video. And moving forward, judges would like to implement a hybrid in-person and video procedure for oral arguments.
General Tips for Practitioners
Next, Judge Lee shared some general tips he had for practitioners. He reminded attorneys, young and old alike, to be short and to the point. In his days of practice, Judge Lee wished he had taken “more of a scalpel to his briefs.” To an attorney, every fact and issue is important. But to a judge, many of the finer details get lost in the fold. Judge Lee recommended keeping that in mind while editing.
Judge Lee was followed by Judge Bumatay, who instructed lawyers to remember that judges are people too. Facts and sympathies matter for judges—just as they do for any other person.
And to end the segment, Judge McKeown gave a preview of how judges go into oral arguments and decide cases. Judges read the briefs, but they also make sure to read previous opinions. And she emphasized how much judges talk to each other and try to get every angle to make sure they’re coming to the right decision. Judges help each other out after the fact and before en banc votes are held. Judges look at opinions to ensure consistency in the law. And attorneys should keep this in mind.
For brief writing, Judge Lee emphasized the importance of citing analogous Ninth Circuit opinions. Many litigants spend too much time discussing district court cases or unpublished opinions. To Judge Lee, these cases, as nonbinding authority, don’t help as much as comparing or distinguishing analogous Ninth Circuit cases.
For Judge Bumatay, being brief in your brief is vitally important. Get the key facts and arguments to the judges in as digestible a way as possible. He also cautioned against being too advocacy-oriented in briefs. He recommended writing as if it’s a court opinion, because the brief will be seen with more credibility. Judge Bumatay ended by advising attorneys to take advantage of your opportunity to file a reply brief. Without one, a judge may assume you don’t have arguments to address your opponent’s arguments.
Judge McKeown further emphasized keeping your audience in mind: the judges. Be clear, be selective, and be intentional. Tell the judges what you want. Put your best issues first and avoid issues with little to no chance of success. She recommended clearly identifying where the lower court erred and never speaking ill of the lower court. Judge McKeown also highlighted her preference on an issue of contention in law schools: to use or not use block quotes. For Judge McKeown, it is not much of a question—use them. Judges want to see what other judges say. They will take the time to read block quotes, so you should include them when appropriate.
Lastly, the judges gave their recommendations and tips for attorneys preparing for oral argument.
Judge McKeown started by reminding attorneys who their audience is: judges. Many attorneys come in with jury-focused arguments, but those do not work as well on judges. Come in with two or three points and answer questions with those points in mind. At its core, oral arguments are your opportunity to have a conversation with the judges. It is not a combative situation. Although the Ninth Circuit is a hot bench, the questions are intended to better the judges’ understanding of the case. Different judges ask different questions for different reasons. Take them as an opportunity to explain your case and fill any gaps judges might see. Always start with a yes or no if you can. And if you can’t, explain why you can’t.
Judge McKeown also noted that the Court generally does not go into arguments with a draft opinion. Most often, this is an opportunity for attorneys to make their mark on how the case will be decided. Use the opportunity. And attorneys should put themselves in the judges’ shoes. If you’re asked how you would write the rule you’re arguing for, you need to have an answer. Don’t forget that although your case is your case, the judges must consider how your case will fit with other cases.
For Judge Bumatay, attorneys should recognize the importance of oral arguments. Oral arguments influence and often change a judge’s opinion. They should be taken seriously. Judge Bumatay also recommended coming into oral argument knowing what you’re ready to concede. You maintain credibility when you don’t try to defend the indefensible.
During the first panel of Part I of the Keep Seminar, district judges shared their insight on expert witnesses. That panel is covered here.