Federal Bar Association meets at Cooley Law School --Judges from 6th Circuit reveal best practices

By Roberta M. Gubbins

Legal News

The Sixth Circuit Judges advanced on Cooley Law School on April 13th to give ''The DOs and DON'Ts of Preparing and Presenting an Effective Appeal Before the United States Court of Appeals for the Sixth Circuit'' on April 13.

The event, which was presented by the Federal Bar Association, Western Michigan Chapter, featured four judges from the United States Court of Appeals for the Sixth Circuit Judge David W. McKeague, Senior Judge Richard F. Suhrheinrich, Judge Raymond M. Kethledge, and Judge Helene N. White.

Senior Judge Richard F. Suhrheinrich opened the discussion with comments on "What I have seen as senior judge is the change of the docket in the Sixth Circuit."

"We have, for all intents and purposes, become a criminal court. When I started in the Federal Court, there were virtually only two types of crimes in the federal system--bankruptcy and boot-legging. Now when Congress sees what they consider to be a wrong, they create a law and now we have tons of crimes."

"To give you an idea," Judge Suhrheinrich said, "Federal budget litigation is down 33%, diversity is down 25%, civil rights cases are down while criminal matters are up 26% and if you take criminal cases, direct criminal rights cases, habeas corpus cases, you get up to 65% of our docket. We see almost no civil rights cases that have actually been tried. The biggest jump has been immigration, which has grown in the last ten years about 700% and continues to grow."

The judges agreed on some recommendations. All agreed that the attorney at the podium should know the file.

"There is no excuse for you to be before the United States Court of Appeals and say 'Judge, I don't know this case very well because I am subbing for my partner.' Be prepared," Judge Suhrheinrich said.

The Judges also agreed that briefs should be brief.

"We have page limits but that does not mean you need to use all those pages," Judge McKeague said.

"Don't use the shotgun approach with ten different issues. Find the strong issues." (Judge Suhrheinrich)

"With writing--make it short--good writing is short writing. It should be 20 to 30 pages." (Judge Kethledge)

Q: How effective are oral arguments?

"Oral argument, for the most part, doesn't change our opinions." (Judge Suhrheinrich)

"I think we know how the case will come out most of the time. But there are certainly enough cases where we didn't understand the issue that it makes making your arguments worthwhile." (Judge McKeague)

"I do change my mind after oral argument. I would say that two or three cases a week I go in with one opinion and come out the other way." (Judge Kethledge)

Judge Suhreinrich recommended that the lawyer "be yourself when you come to court. Don't waste your time arguing the facts," he noted, "you have 15 minutes--get right to it--(tell us) what this case is about."

Judge McKeague noted that reading a brief with "a whole series of acronyms in the beginning and then trying to remember what they are is confusing."

He suggested that lawyers "tell us what the district court did wrong as early as possible in your brief; give all the facts; delete exaggerations, spell and grammer check, and I do draw a negative inference if there are good arguments in the responsive brief and there is no reply."

Judge Kethledge urged attorneys to answer the hard questions. "I will ask a question that lays out the rational of what I have on my mind. (Your answer) might be your last chance to convince me otherwise."

His writing tips included "Write in a human voice. In the first sentence, I would try to say the one thing that I want the court to remember. Avoid footnotes, they stop the flow of the narrative."

Judge Helene White suggested that, "In preparing for oral argument, go over your brief the way we got over it. Read it with the decision maker's hat--what's not clear, what argument will the other side have in response to my argument. You only have 15 minutes time--you have to be concise and direct. You have to understand that you might not be able to make your argument. And that's okay."

Paul Brandenburg, career clerk to Judge McKeague said,

"When preparing your arguments written or oral," said Paul Brandenburg, career clerk to Judge McKeague, "step aside from your role as zealous advocate for your client and imagine yourself as a decision maker. Imagine seeing the arguments from both sides. Then take a few moments and try to develop a story that weaves together the elements of the case. Prepare a story that the judges can write the ending too that they really like."

"Update the briefing," he said. "In almost all cases, your briefing is completed three or four months before the hearing. The judges receive a pre-hearing memo that updates case law. To ignore that is to run the risk of being blind-sided by the judges or your opponents."

Molly Hamilton, career clerk to Judge Suhrheinrich, advised that lawyers to "pay attention to the questions, they reflect what is bothering the judges."

Published: Thu, Apr 29, 2010