Third Circuit Practice Tips

At today’s seminar sponsored by the Association of the Federal Bar of New Jersey, a panel headlined by Judges Chagares and Shwartz discussed tips for practicing before the Third Circuit.  Much of what was said paralleled the advice given at other such sessions:  be sure to cite the record for any factual assertions in a brief, pay attention to the standard of review, select only your best appellate issues and discard the rest, and be prepared at oral argument.  But some additional points were made that are worth reporting.

One observation about briefs.  Judge Chagares pointed out, as discussed here, that very few cases are argued orally in the Third Circuit.  As a result, the briefs assume unusual importance, since they are likely to be the only place where a party’s position can be presented.  Every effort should be made to make the briefs as effective as possible. 

One observation about oral argument.  Judge Shwartz observed that many lawyers don’t realize how short the fifteen minutes that counsel are normally allotted for oral argument really are.  In recognition of the fact that much of that time will be consumed by answering the panel’s questions, counsel should be prepared with a short capsule that is the essence of their argument, with the goal of ensuring that at least that much is able to be said within the allotted time.

One observation about mediation.  Both judges said that there are times when the court will suggest mediation even after oral argument.  As they noted, very few counsel leave a Third Circuit argument convinced that they will win the appeal.  As a result, it can be the optimal time for mediation.  And the court will consider directing mediation, before or after argument, at the ex parte request of one side.  So if you think mediation would be useful and the court has not referred the case to mediation, consider contacting the court and asking for mediation.

One final point about technology.  Many judges now read briefs in “e-friendly” ways, on tablets or the like.  Briefs that are published directly from a word processing program to PDF, as opposed to being scanned, afford the capacity for cited cases to be hyperlinked.  That makes the judges’ task easier.  As a result, publishing directly to PDF is a preferred means of briefing.