At the Northern District of Texas Bench Bar Conference in Irving, Texas, Judges Edith Jones, Catharina Haynes, and Dana Douglas of the US Court of Appeals for the Fifth Circuit shared their insights on how lawyers can better argue before them. Among their advice, they suggested that not all amicus briefs are helpful, the court is more likely to grant a request for a rehearing if it points to an error the judges made, and the panel does not need to know every factual detail in a dispute.
Haynes reminded lawyers that not all cases before the court are scheduled for oral argument. She emphasized the importance of a well-written brief, which may be the only argument presented to the judges. Even if an oral argument is scheduled, she suggested that the judges on the panel approach the case fresh and are not as familiar with the facts and arguments as the presenting attorney. Thus, practitioners should be mindful of this and ensure that the brief effectively communicates what the judges need to know. Haynes advised against including every factual detail in brief unless it is essential to the dispute. She suggested focusing on the key issues that will have the most significant impact on the case.
When it comes to oral arguments, Jones recommended that attorneys start with the arguments they believe are most important. She said this often has a substantial impact on her and her colleagues, influencing the writing of the case. Jones also cautioned against using an iPad at the podium, as it can be risky if it does not work as expected.
The judges acknowledged that it is rare for the court to agree to rehear a case or rehear it with its full panel of 16 active judges. However, Douglas advised attorneys to resist the urge to regurgitate everything presented in the original brief before the court. Instead, it is most useful to point out something objectively that may be in error or conflict with circuit precedent or precedent from the Supreme Court. Jones appreciated requests for rehearing that drew attention to a mistake that was made. She noted that the court is a volume court and may make mistakes due to the high volume of cases.
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Regarding amicus briefs, Jones commented that there are often too many filed in significant cases. However, she found the ones that discuss the practical impacts of a case to be the most helpful. She suggested that actual research and secondary authorities can be beneficial when cited. On the other hand, Haynes stated that she does not find political amicus briefs helpful, as the judicial branch is not a political branch, and she must apply the law to the facts of a case, whether she agrees with it or not.
In conclusion, the judges of the US Court of Appeals for the Fifth Circuit provided valuable insights for lawyers looking to improve their litigation skills. Their advice focused on the importance of a well-written brief, the key issues that must be addressed, and how to effectively argue before the court. Additionally, they provided guidance on requesting a rehearing and what types of amicus briefs are most helpful. Lawyers who consider this advice may be better equipped to succeed in the Fifth Circuit Court.
