Appellate Advocacy

On January 23, 2012, the Supreme Court issued a unanimous opinion in the case of National Meat Association v. Harris, No. 10-224.

In its decision, the Court reversed the Ninth Circuit Court of Appeals, reasoning that the Federal Meat Inspection Act (“FMIA”), 21 U.S.C 601, et seq., expressly preempts inconsistent state law. This decision is the latest in a long line of Supreme Court opinions that have historically and consistently affirmed the preemptive effect of of the FMIA.

The FMIA governs the production and distribution of meat products in interstate commerce. The Act is enforced by the United States Department of Agriculture’s Food Safety Inspection Service (“FSIS”), and requires continuous, on-site inspection of all slaughter and processing establishments. The FSIS is required, among other things, to ensure that all meat products are: (1) produced under sanitary conditions; (2) not adulterated; and (3) properly labeled.

Under the FMIA, slaughter establishments are expressly permitted, under defined circumstances, to receive, hold and slaughter nonambulatory animals. After slaughter, but prior to being used for human food, the carcasses of such animals must first be inspected by a FSIS inspector.

The FMIA also contains an express preemption provision, 21 U.S.C. 678, which prohibits states from adopting any different or additional requirements than those imposed by the FMIA.

Despite the existence of a federal law governing the treatment of nonambulatory animals in slaughter establishments, and the existence of an express preemption provision within the FMIA, the state of California nevertheless amended its penal code in 2008 to prohibit slaughter facilities from receiving, holding or butchering nonambulatory animals. Because the federal standards under the FMIA and the new state law were inconsistent, the Nation Meat Association brought suit challenging the California law.

In an opinion authored by Justice Kagan, the Supreme Court confirmed that FMIA’s preemption clause “sweeps broadly,” and prohibits states from imposing any additional or different (even if non-conflicting) requirements concerning slaughterhouse facilities or operations. Because the State of California was attempting to govern in an area reserved exclusively for federal regulation, the Court held that the California law was preempted.

Thus, once again, the Supreme Court has made clear that the states are strictly prohibited from legislating in those areas already occupied by the FMIA.

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On Monday, January 9, 2012, the Supreme Court heard argument in a case challenging the Environmental Protection Agency’s issuance of administrative compliance orders under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (the “CWA”). Sackett v. United States Environmental Protection Agency, No. 10-1062.

Chantell and Mike Sackett bought a vacant lot near Priest Lake, Idaho, intending to build their home there. The lot is zoned residential and is located in a platted subdivision, with sewer and water hookups. Surrounding lots already have homes built on them. The Sacketts applied for and obtained the necessary building permits from the local authorities. Once they began laying gravel, however, they were hit with a compliance order from the EPA. The order declared the Sacketts’ property to be “wetlands,” and charged the Sacketts with discharging pollutants into the waters of the United States, absent a permit, in violation of 33 U.S.C. § 1311(a). In the order, the EPA required the Sacketts to return the property to its prior condition and to seek a wetlands permit – costs that, according to the Sacketts, would add up to tens of thousands of dollars, many times the $23,000 they paid for the property. Failure to comply with the order could result in fines of up to $37,500 per day.

The Sacketts tried to challenge the wetlands finding – both before the EPA and in federal court under the Administrative Procedure Act, but their challenges were rejected. The district court in Idaho concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in federal court, and granted the EPA’s motion to dismiss. Sackett v. EPA, No. 08-CV-185-N-EJL, 2008 WL 3286801 (D. Idaho Aug. 7, 2008). The Ninth Circuit affirmed. Sackett v. EPA, 622 F.3d 1139 (9th Cir. 2010). In other words, the only way in which the Sacketts could obtain judicial review of the order would be to violate the order and then raise their arguments in any enforcement action brought by the EPA.

Arguing on behalf of the Sacketts, Damien Schiff of the Pacific Legal Foundation stated that his clients’ inability to seek relief from the courts when the EPA issues a compliance order under the CWA amounts to a denial of due process. The majority of the justices seemed sympathetic with his argument. Justice Stephen Breyer, for example, later commented that not allowing judicial review of administrative actions would represent a “huge upheaval” of federal practice, because “for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite.” Justice Elena Kagan, however, suggested that the Sacketts had not exhausted all of their administrative remedies and could have obtained a wetlands permit from the Army Corps of Engineers. Mr. Schiff disagreed, stating that having to go through the wetlands permit process before a second agency was not an adequate remedy.

Deputy Solicitor General Malcolm Stewart argued for the EPA, and stuck to the EPA’s position that the Sacketts’ property is a wetland and that the CWA precludes any judicial review of compliance orders. The Court did not appear to be persuaded. In particular, Justice Anthony Scalia and Justice Samuel Alito sharply criticized the EPA’s argument. Justice Alito remarked at one point that “most ordinary homeowners would say this kind of thing can’t happen in the United States,” adding later that the EPA’s conduct is even more “outrageous” because it can change its mind at any time after issuing the compliance order.

The case is being closely watched by industry and public interest groups alike. Fifteen different amicus briefs have been filed, fourteen of them in favor of the Sacketts – including briefs filed by the Chamber of Commerce, the State of Alaska and various trade and industry groups. The media is describing the case as a fight between the “little guy” and big government. We’ll find out if David or Goliath wins this fight when a decision is issued this spring. The Court’s decision could impact not only CWA enforcement authority, but possibly also review of compliance orders issued under other federal environmental statutes.

Carmen R. Toledo is a partner at King & Spalding in Atlanta, Georgia.

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In a unanimous ruling, the U.S. Supreme Court adopted the “ministerial exception” developed in the lower courts and held that the First Amendment flatly prohibits the application of discrimination laws to the employment of “ministers” by religious institutions. The Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., though fact-specific, affords broad discretion to churches and other religious entities to hire and fire employees engaged in preaching or teaching their faith, without fear of a discrimination suit.

Writing the opinion for the Court, Chief Justice Roberts traced the origins of religious liberty reflected in the First Amendment—from Magna Carta to the founders’ (negative) experiences with established churches—and the Court’s traditionally hands-off approach to religious-governance disputes. Rooted in this legal history and the constitutional text itself, which Chief Justice Roberts described as giving “special solicitude to the rights of religious organizations,” the Court held that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so,” violates both the Free Exercise and Establishment Clauses of the First Amendment.

The “ministerial exception” recognized by the Court is not limited to religious discrimination but includes all manner of otherwise-regulated distinctions among employees—e.g., sex, disability, marital status. Moreover, in applying the exception in Hosanna-Tabor to preclude a teacher at a faith-based primary school from suing for retaliation under the Americans with Disabilities Act, the Court held that the exception should not be limited to the “head of a religious congregation.” The Court refused to “adopt a rigid formula for deciding when an employee qualifies as a minister” subject to the exception, but stressed that the plaintiff was a “commissioned minister,” and was held out by the school and herself as having that special vocation. Although the plaintiff chiefly taught secular subjects and spent only part of her day teaching religion or leading students in prayer, the “ministerial exception” applied because her “job duties reflected a role in conveying the Church’s message and carrying out its mission.”

Chief Justice Roberts closed by emphasizing that the Court’s adoption of the “ministerial exception” is limited to employment discrimination laws and that its application in Hosanna-Tabor was limited to the facts before the Court. The Justices expressly reserved their views on whether or not the exception would or should apply to tortious acts, breach of contract, or other legal disputes involving religious employers and their employees.

Hosanna-Tabor offers significant leeway to faith-based employers in making employment decisions, and the defense bar would be wise to educate affected clients on their rights in this regard. That said, the fact-specific nature of the Court’s action warrants caution and a clear understanding of the requirements and duties of the job or jobs at issue, as well as the employer’s nature and purpose, before any such client should be advised to rely on the defense.

James A. Sonne, Horvitz & Levy

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In CompuCredit Corp. v. Greenwood, 10-948, the Court held that pre-dispute agreements to arbitrate claims under the Credit Repair Organizations Act (CROA) are valid and enforceable. Although the CROA requires that consumers be informed of their “right to sue,” the Court held that this is simply “a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA.” These provisions do not require that the action proceed in court, as opposed to in a arbitration. Furthermore, the statute’s use of terms such as “action” and “court” in its liability provision do not require a judicial forum either. The Court recognized that it was “utterly commonplace” for statutes to use such language. In light of these points, the CROA’s non-waiver provision does not preclude arbitration.

Perhaps most significantly, the Court’s opinion emphasizes that if Congress had meant to prohibit arbitration agreements, it would have spoken much more clearly. Citing several other federal statutes that expressly precluded predispute arbitration agreements, the Court found it “unlikely” that the use of “right to sue” and “action” signaled an intent to do the same in this context.

Linda Coberly is a partner in Winston & Strawn's litigation practice and serves as vice chair of the firm's appellate and critical motions practice group. She is also the author of DRI's Amicus brief filed in this case. Contact Linda at lcoberly@winston.com.

Categories: ADR | Appellate Advocacy | Civil Justice System | Defense Practice | Supreme Court

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In “RULE OF EVIDENCE 703 — Problem Child of Article VII (Sept. 19, 2011),” I wrote about how Federal Rule of Evidence 703 is generally ignored and misunderstood in current federal practice. The Supreme Court, in deciding Daubert, shifted the focus to Rule 702, as the primary tool to deploy in admitting, as well as limiting and excluding, expert witness opinion testimony. The Court’s decision, however, did not erase the need for an additional, independent rule to control the quality of inadmissible materials upon which expert witnesses rely. Indeed, Rule 702 as amended in 2000, incorporated much of the learning of the Daubert decision, and then some, but it does not address the starting place of any scientific opinion: the data, the analyses (usually statistical) of data, and the reasonableness of relying upon those data and analyses. Instead, Rule 702 asks whether the proffered testimony is based upon:

1. sufficient facts or data,

2. the product of reliable principles and methods, and

3. a reliable application of principles and methods to the facts of the case

Noticeably absent from Rule 702, in its current form, is any directive to determine whether the proffered expert witness opinion is based upon facts or data of the sort upon which experts in the pertinent field would reasonably rely. Furthermore, Daubert did not address the fulsome importation and disclosure of untrustworthy hearsay opinions through Rule 703. See Problem Child (discussing the courts’ failure to appreciate the structure of peer-reviewed articles, and the need to ignore the discussion and introduction sections of such articles as often containing speculative opinions and comments). See also Luciana B. Sollaci & Mauricio G. Pereira, “The introduction, methods, results, and discussion (IMRAD) structure: a fifty-year survey,” 92 J. Med. Libr. Ass’n 364 (2004); Montori, et al., “Users’ guide to detecting misleading claims in clinical research reports,” 329 Br. Med. J. 1093, 1093 (2004) (advising readers on how to avoid being misled by published literature, and counseling readers to “Read only the Methods and Results sections; bypass the Discuss section.”) (emphasis added).

Given this background, it is disappointing but not surprising that the new Reference Manual on Scientific Evidence severely slights Rule 703. Using either a word search in the PDF version or the index at end of book tells the story: There are five references to Rule 703 in the entire RMSE! The statistics chapter has an appropriate but fleeting reference:

“Or the study might rest on data of the type not reasonably relied on by statisticians or substantive experts and hence run afoul of Federal Rule of Evidence 703. Often, however, the battle over statistical evidence concerns weight or sufficiency rather than admissibility.”

RMSE 3d at 214. At least this chapter acknowledges, however briefly, the potential problem that Rule 703 poses for expert witnesses. The chapter on survey research similarly discusses how the data collected in a survey may “run afoul” of Rule 703. RMSE 3d at 361, 363-364.

The chapter on epidemiology takes a different approach by interpreting Rule 703 as a rule of admissibility of evidence:

“An epidemiologic study that is sufficiently rigorous to justify a conclusion that it is scientifically valid should be admissible,184 as it tends to make an issue in dispute more or less likely.185"

Id. at 610. This view is mistaken. Sufficient rigor in an epidemiologic study is certainly needed for reliance by an expert witness, but such rigor does not make the study itself admissible; the rigor simply permits the expert witness to rely upon a study that is typically several layers of inadmissible hearsay. See “Reference Manual on Scientific Evidence v3.0 – Disregarding Study Validity in Favor of the “Whole Gamish” (Oct. 14, 2011) (discussing the argument put forward by the epidemiology chapter for considering Rule 703 as an exception to the rule against hearsay).

While the treatment of Rule 703 in the epidemiology chapter is troubling, the introductory chapter on the admissibility of expert witness opinion testimony by the late Professor Margaret Berger really sets the tone and approach for the entire volume. See Berger, “The Admissibility of Expert Testimony,” RSME 3d 11 (2011). Professor Berger never mentions Rule 703 at all! Gone and forgotten. The omission is not, however, an oversight. Rule 703, with its requirement of qualifying each study relied upon as having been “reasonably relied upon,” as measured by what experts in the appropriate discipline, is the refutation of Berger’s argument that somehow a pile of weak, flawed studies, taken together can yield a scientifically reliable conclusion. See “Whole Gamish,” (Oct. 14th, 2011).

Rule 703 is not merely an invitation to trial judges; it is a requirement to look at the discrete studies relied upon to determine whether the building blocks are sound. Only then can the methods and procedures of science begin to analyze the entire evidentiary display to yield reliable scientific opinions and conclusions.

The author, Nathan A. Schachtman, is in private practice in New York City, and is a lecturer-in-law at the Columbia Law School. He keeps a web log of musings on tort and evidence law at his website: schachtmanlaw.com

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The Supreme Court heard oral argument on two consolidated cases, Florence v. The Board of Chosen Freeholders of the County of Burlington. Two well-known and experienced members of the United States Supreme Court appellate bar, Thomas C. Goldstein and Carter Phillips, squared off as the Court considered whether the Fourth Amendment permits a jail to conduct a suspicion-less search whenever an individual is arrested, including for minor offenses. DRI, which has an active committee for lawyers engaged in representing local governments, filed an amicus brief in support of the county jails. Written by Mary Massaron Ross, the brief focused on the difficult problems of administration that would arise with a “reasonable suspicion” rule as urged by the class action plaintiffs and reminded the Court of past precedent adopting a bright line rule for Fourth Amendment searches in some categories of cases. DRI argued that a bright line rule was necessary to give guidance to jailers, to facilitate their efforts to ensure that contraband is not introduced into jail, to help with prison security by identifying those with gang tattoos, and to ensure that lice and other health issues are identified and addressed.

From the inception of Mr. Goldstein’s argument for the plaintiffs, he faced difficult questions from members of the Court seeking a clear rule for when a search would be constitutional. Justice Ginsburg asked the first question, wanting to know whether Mr. Goldstein’s reasonable suspicion rule would apply to all arrestees or whether he proposed a distinction between felons and serious offenders. Mr. Goldstein responded that his rule would apply to everyone but then backed away somewhat when he faced additional questions, noting that reasonable suspicion would exist categorically for those arrested for more serious offenses. After a barrage of questions on the scope of his proposed rule and what kinds of offenses it would categorically apply to, Mr. Goldstein attempted to define the constitutional limits of jailers’ conduct by saying that reasonable suspicion would not be required for “anything other than looking at a close inspection of the person at arm’s length.” He insisted that “just observing in a shower room… does not implicate a reasonable expectation of privacy.” Mr. Goldstein also faced multiple questions about what would be permitted under his approach, whether constitutionality would depend on whether the search was merely visual, whether showering in the presence of officers would be permitted, whether the distance of the officers made a difference, and whether it mattered where the search took place.

Justice Kennedy, often the swing vote in close votes on constitutional cases, said, “But it seems to me that you risk compromising your individual dignity if you say we have reasonable suspicion as to you, but not to you…You are just setting the detainees up for a classification that may be questioned at the time, and will be seen as an affront based on the person’s race, based on what he said or she said to the officers coming in.” Justice Kennedy further observed that the reasonable suspicion rule “imperils individual dignity in a way that the blanket rule does not.” Mr. Goldstein told Justice Kennedy that the county defendants did not have a blanket rule either because they only do a visual search unless they have reasonable suspicion.

Other justices had problems with Mr. Goldstein’s effort to draw a line between permissible and impermissible conduct based on the distance of the officers, including Justice Sotomayor. She said at one point, “That is a line that doesn’t make sense to me.” She also questioned him about his effort to differentiate between visual searches from several feet away and visual searches involving a requirement that the individual open or expose private parts of the body. Justice Sotomayor also questioned Mr. Goldstein about whether corrections officials could be expected to investigate the nature of the offense on intake. Justice Kennedy likewise had questions about whether rap sheets were immediately available at the time of intake. And Justice Roberts followed up to ask whether there was anything in the record to “show how much additional time it would require to look at each one, to look at their record, to determine which category they should fall into to strip search or not, as opposed to having a blanket rule.” Justice Scalia suggested an originalist view, noting that “at the time the Fourth Amendment was adopted, this --- this was standard practice, to strip search persons who were admitted to prisons.”

Carter Phillips began his argument by noting that the scope of the claims had been somewhat confused in the record and cautioning the Court regarding analyzing the set of issues involved in the class certification and the second set of issues involved in the plaintiffs’ claims. He also urged the Court to focus on the policies in effect in 2005, which was the basis on which Mr. Florence was arrested, rather than looking at later-enacted changes to the policies. Mr. Phillips urged the Court to adopt a blanket rule permitting even a more intrusive body cavity search without reasonable suspicion. He noted that the detainees were being introduced into the general jail population in both counties, thus he did not have to defend a rule pertaining to those arrested and held in separate holding areas.

Justice Breyer and Justice Alito both questioned whether this type of search could be performed on any individual including those arrested on minor offenses. Justice Breyer pointed to the ABA’s position, which was that reasonable suspicion would be required for detainees arrested for minor offenses, not including drugs or violence. Mr. Phillips responded by pointing to expert testimony showing that a greater presence of contraband is found among individuals with minor offenses. Justice Breyer and Justice Sotomayor both pressed Mr. Phillips for empirical evidence that contraband would be a problem if a reasonable suspicion rule were to be adopted. Justice Ginsburg asked Mr. Phillips if there were any constitutional limits to the type of body cavity search in his view. And he responded no – that the “balance would tip in favor of the… institution under those circumstances.” Mr. Phillips urged the Court to write an opinion “that recognizes that deference to the prison and to their judgment s what’s appropriate under these circumstances, and that extends all the way to the Bell v. Wolfish line.” Justice Kennedy suggested during the argument that those arrested on minor offenses and put into the general jail population might “well prefer an institution where everyone has been searched before he or she is put into the population….”

After Mr. Phillips spoke, Nicole A. Saharsky, on behalf of the United States, argued in support of the counties’ position. She emphasized that detainees might well hide a gun or contraband on their person at the time of an arrest, or might obtain such items during the time between the arrest and reaching the county jail. She told the Court that the United States position is to support a policy to “inspect everyone who would be put in the general jail population.”

On rebuttal, Mr. Goldstein focused on the empirical evidence, which he contended supported the conclusion that a reasonable suspicion standard did not result in security problems in jails or prisons.

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Can a spouse recover for loss of consortium if he testifies that the marital relationship actually improved after the accident? He can in California.

On May 26, 2011, the California Court of Appeal issued its decision in Mealy v. B-Mobile, Inc. (2011 DJDAR 7497).

Background

Plaintiffs Donald Mealy and Adelaide Mealy were born in 1925 and 1927, respectively. In 1952, Adelaide suffered nearly complete paralysis in both legs and was confined to a wheelchair after battling polio. Nevertheless, she lived an active life, driving a car, working outside the home, and having five children with Donald. Id.

Beginning in 2000, Adelaide used a lift system to transfer her between her bed, the bathroom, and her wheelchair. She fell from the lift in 2006, suffering a broken hip. After a year of recovery, she resumed an independent lifestyle including household chores, cooking, gardening, and travelling. Id.

In 2008, Adelaide fell from the sling of a replacement lift system. Unfortunately, her recovery was not as successful as it was in 2006. Thereafter, Adelaide was unable to perform household services or enjoy leisure activities, and her husband became her fulltime caretaker. Id.

Trial

During trial, Donald testified that he spent more time with his wife after the accident. He testified that they love each other even more than they did before the accident. Finally, he testified that the accident did not hurt his relationship with his wife—“Not a bit.” Id. at 7497-7498.

Based on this testimony, defendants moved for entry of judgment. In deciding the issue, the court examined whether partial loss of consortium was a recognized legal theory (discussing Park v. Standard Chem. Way Co. (1976) 60 Cal.App.3d 47, 50-51). Id. at 7498-7499. After a brief discussion, the court ruled that partial loss of consortium was like “being a little bit pregnant.” Finding that plaintiff did not establish complete loss of consortium, judgment was entered in defendants’ favor. Id.

Analysis on Appeal

The Court of Appeal dismissed the Park Court’s statement regarding partial loss of consortium as dicta. The court instead relied on the California Supreme Court’s holding in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382 which “expressly recognized the right to recover damages for the ‘loss or impairment’ of the plaintiff’s rights of consortium, and we see no basis to conclude that a loss of consortium must be so extensive as to be considered complete in order to be compensable.” Id. at 7499.

As for Donald’s trial testimony that he and his wife loved each other more after the accident, the Court of Appeal concluded that they were understandable comments of a loving husband. “Those supportive comments do not negate the tangible impact of his wife’s injury on Donald Mealy and the inevitable loss of conjugal society, comfort, affection, moral support and other noneconomic elements of the marital relationship resulting from his becoming virtually a full-time caregiver for his wife.” Id. As such, the trial court was overturned and the case was remanded for a limited trial on damages for loss of consortium.

About the author, Richard Crites.

Categories: Appellate Advocacy | Product Liability | Recreational Products | Damages

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Last week, a New Orleans district judge ruled that 7 property owners' petition to enjoin the Army Corps of Engineers from proceeding with remediation work for the 17th Street Canal (reported on Levees.Org). The families claimed that the work crew would trespass on their property. The suit stems from a dispute over whether backyards along the canal are part of the state's right of way or private land.

In denying the petition, Judge Reese reasoned that stopping the Corps' work would not accomplish any good for either party. However, Judge Reese believed the homeowners had been wronged and apparently told the plaintiffs that he would void his past judgment and allow the the 17th Street Canal Coaltion to re-write their petition to allow them to seek relief from the Corps in federal court.

The homeowners along the New Orleans side of the 17th Street Canal had filed a civil suit, attempting to stop the Arm Corps of Engineers from beginning contruction on a project that will strengthen floodwalls allong the canal. They claimed that they have not been compensated for damage to their properties. As many of our members know from personal experience, the canal broke during Hurricaine Katrian and contributed to the flooding in New Orleans on August 29, 2005.

An article in The Insurance Journal points out that this current suit brings up similar issues raised in a 2008 action where homeowners sought compensation for the loss of trees, fences and outbuildings close to the 17th Street Canal levee. Crews removed that property to make the canal's levee and floodways safer. Judge Reese ruled in their homeowners' favor, but a state 4th Circuit Court of Appeal overturned the ruling.

The difference between the 2008 suit and the current one is that, in the current case, the homeowners are seeking to stop a new round of work.

The homeowners are likely going to file their claim in federal court and, thus, potentially delay further work on the levee. The issue presents a difficult balance between protecting the residents of New Orleans and constitutional rights of a handful of homeowners.

Categories: Appellate Advocacy

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Why rely on a colleague's interpretation of a court rule or procedure when you can go to the original source? 　Attorneys typically don't think of contacting a court's clerk's office to answer an appellate question. 　Some attorneys shy away from the practice generally because they fear being accused of communicating with the court ex parte. 　Others simply don't think of contacting a court to answer a procedural appellate question. 　For whatever reason, you are missing out on a wealth of information and experience that court clerk's offices offer.

To be clear, we are not advocating that you contact a clerk's office for an interpretation of procedural or substantive law. 　Rather, we are recommending that you direct your questions on court rules and procedures to a court clerk's office. 　Court clerk's offices are an untapped resource. However, you won't benefit from calling a court clerk's office without a plan. 　Like those of us in private practice, attorneys and staffers at court clerk's offices are busy. 　Therefore, we provide the following suggestions to get the most out of your contact with a court's clerk's office.

1. Read the court's rules before calling the clerk's office. 　Almost every appellate court's rules and procedures are accessible on the World Wide Web or West’s softbound volumes. 　Don't call the clerk's office with a question that a read of the court's rules will answer. 　If you still have a question about the rules, have them accessible when you call the clerk's office. 　The clerk's staff will appreciate that you have already read the rule and will be better able to answer your question. 　Also, you stand to get a more precise answer if you are able to direct the clerk's staff to the precise section of the rules that relates to your question.

2. Have your appeal's docket number, appellate number, or other identifying information ready before calling the clerk's office. 　Most, if not all, clerk's offices have computer databases that track the incoming motions and appeals. 　A good way to alienate a clerk's staffer from the start of the conversation is to fumble around to find your appeal's identifying information.

3. Look on the court's webpage for a listing of staff's contact information. 　If the court provides a listing of particular offices for certain appellate questions, call the appropriate office. 　Do not call the general number and hope for the best. 　If you do, you increase the chances of being transferred numerous times to the incorrect office.

4. If you only have access to the court's general telephone number, identify your issue clearly at the beginning of the conversation. 　For example, the first thing I usually state to a court's clerk's office is, "Good afternoon. 　I have a question about creating a Record on Appeal on a civil appeal." 　Identifying that the matter concerns a civil appeal is important where the court assigns different attorneys or staffers to civil or criminal appeals. 　Also, some courts dedicate certain attorneys or staffers to certain sections of court procedure -- e.g., motions, records on appeal, motions, etc.

5. Some courts assign case managers to each appeal. 　If your appeal has a case manager, call him or her first with the question. 　If he or she is unable to answer the question, he or she will refer you to the appropriate person. 　If you attempt to skip that step, you'll inevitably get transferred to your case manager.

6. If you get an attorney's or staffer's voicemail, be detailed yet concise. 　Identify who you are, your appeal, whom you represent, your telephone number (speak slowly), and your question. 　Provide a short synopsis of your question on the voicemail. 　For example, "I have a question about a motion to dismiss an appeal." 　The clearer the message, the more apt the office will contact you back expeditiously. 　

7. Sometimes court rules provide judicial remedies for issues that the court would prefer the parties handle without court intervention. 　For example, appellate courts usually have a rule regarding motions to strike a record on appeal or appendix because certain documents are missing or omitted. 　However, some courts prefer that a party forego motion practice and solve the issue by submitting a supplemental record on appeal or appendix or agreeing with the appellant that he or she will do so. 　Before making these types of motions, you might want to call the court's clerk's office to learn the court's preferred method of resolving the issue. 　Like trial courts, appellate courts are flooded with motions and other work. 　If you can lighten the office's workload with the court's blessing, do so.　

8. Do not ask questions that seek legal advice. 　The best way to end a conversation with a court's clerk's office is to ask those types of questions. 　If you are unsure that the question straddles the line between asking for legal advice and simply asking about court procedure, preface the question by telling the attorney and staffer that you do not mean to delve into that realm and that you are only seeking an answer information on the court's rules and procedures.　 Most often, the clerk will provide as much information as they can, but will not provide the ultimate answer.　 For example, the court’s clerk’s office might confirm that the provisions of a rule or statute apply to the time to file a notice of appeal, but he or she won’t tell you the last day to file the document.

9. Do not discuss substantive details about your appeal with the court clerk’s office. 　By doing so, you are putting that attorney or staffer in a position that blurs the line between answering a question about court procedure and engaging in ex parte communication. 　This is another quick way to end a conversation with a court's clerk's office.

10. Do not disparage your adversary to the court's clerk's office. 　Even if your question about court rules and procedure stems from your adversary's lack of professionalism, you should not share those unnecessary details with the clerk's office. 　Frankly, the court does not care about those details and, again, discussing such information changes the conversation to more of an ex parte, adversarial conversation.

11. Make the call to the court clerk’s office yourself.　 Do not delegate the task to a legal assistant, paralegal, or attorney who does not know the appeal or issue.　 By calling the clerk’s office yourself rather than delegating the task, you avoid multiple calls to the court clerk’s office because there are gaps in information about the appeal or question.

Categories: Appellate Advocacy

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Supreme Court Update - National Meat Association v Harris

Sackett v. EPA: The Supreme Court Hears Argument in Wetlands Case

Supreme Court Update - Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.

Supreme Court Update - Compucredit v Greenwood Opinion

New Reference Manual on Scientific Evidence Short Shrifts Rule 703

Supreme Court Hears Argument on Fourth Amendment Limits to Jail Strip Searches

Consortium Without a Cause?

Mean Old Levee Taught Them to Weep: Lawsuit Seeks to Halt New Orleans Levee Work

The Clerk's Office: Helpful Tips for Getting An Answer to Procedural Appellate Questions

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