Ninth Circuit Judges Consuelo Callahan, N. Randy Smith, and Mary Schroeder flew to Honolulu the week of June 11th for oral arguments. While in town they hosted a Q&A for Federal Bar Association members at the Bankruptcy Court on June 12th. The judges discussed the procedures associated with filing appeals and some of their preferences in briefing and arguing. They also fielded a broad range of questions from the two dozen or so attendees, from nuts-and-bolts to more personal questions of style.
Understand the limitations of an appeal. The judges emphasized that the standard of review is often determinative of the outcome on appeal. They are not trial judges and are not empowered to look at a case with an eye sympathetic to the facts, but instead have the narrow job of reviewing only those issues put forward on the appeal, and must do so under the applicable standard. Along those lines, sometimes the attorney handling the underlying case is not the best person to handle the appeal. The judges observed that those attorneys can get bogged down by certain issues that bothered them most below; whereas the client would be better served by a fresh look at which issues are actually winnable on appeal.
Oral argument really is like art. Judge Callahan estimated that she generally considers only 15% of the arguments she hears to be “outstanding” or “really good,” and put about 40% in the category of “terrible.”
Shy attorneys can still persuade. One brave audience member asked whether an attorney could still present a good oral argument if he or she were not normally a confident speaker. The judges said the best way to appear credible is to know the facts of the case. That will shine over your oratorical skills; confidence comes from being able to address the case. Two ways to unimpress: attorneys who refuse to answer the questions put to them and attorneys who don’t know the record (both types are recognizable immediately).
Delay associated with an appeal. The current timeframe for getting a standard civil appeal through the Ninth Circuit is between fourteen and eighteen months. Immigration cases are now on an independent track because there are so many that it would otherwise clog the rest of the caseload. In other words, immigration cases will generally take longer than fourteen to eighteen months, unless there are special circumstances (for example, someone is in detention).
Bingo! Ninth Circuit judges’ calendars are set many months’ ahead of time. The composition of each panel is chosen randomly in what sounds like a bingo-ball style. No cases are assigned to the panels at that time. Much closer to the oral argument date, cases are randomly assigned.
And naturally, all three reported that they loved getting assigned to sit in Hawai`i.
A version of this article appeared in the July 2012 newsletter of the Hawai`i State Bar Association’s Appellate Section.