Fifth Circuit Judges Offer Tips for Litigating in Their Court

Not all amicus briefs are useful; the court’s more likely to grant a request for a rehearing if it points to an error the judges made; and the panel doesn’t need to know every factual detail in a dispute.

Those were some of the tips three judges on the US Court of Appeals for the Fifth Circuit gave to lawyers at the Northern District of Texas Bench Bar Conference in Irving, Texas on Friday.

Judges Edith Jones, Catharina Haynes, and Dana Douglas were asked to share their insights on everything from when it’s appropriate to ask for the full court’s review to how attorneys can better argue before them.

Here’s a rundown of their best advice.

Better Briefing

Haynes reminded lawyers that not all cases that come before the court get scheduled for oral argument.

“Your brief is important because it may be your only argument to us,” she said. “But even if it isn’t, think about what stays on our desk, the couple of pages of notes from oral argument or your brief?”

She wanted practitioners to remember that the judges on the panel are coming at a case fresh and aren’t as well-versed in the facts and arguments as the attorney who’s presenting the case.

“I’m pulling it up for the first time this afternoon,” Haynes said. “You’ve got to realize that distinction and make sure you have made us aware of what we need to know.”

But Haynes said that doesn’t mean every factual detail of a case needs to be noted in the brief unless it’s essential to the dispute.

“It’s important to tell us what the case is about and then focus on the key issues that if you’re the appellant, you have a chance to win on,” she said.

Oral Arguments

When it comes to what’s most effective when arguing before the court, Jones asked attorneys to please start with the arguments they think are most important.

“Quite often that has a strong impact on me at least, and I think my colleagues, as to where the writing of the case will go,” she said. “What the lawyers think is important is often the most important thing.”

Jones also had one practical recommendation: skip the iPad.

“Using an iPad at the podium can be risky,” she said. “It can be very risky if it doesn’t click exactly where you want it to while you’re doing it.”

Rehearings, En Banc

The judges acknowledged it’s rare for the court to agree to rehear a case or rehear it with its full panel of 16 active judges.

That said Douglas advised attorneys to “resist the urge to sort of regurgitate everything that was presented in your original brief before the court.”

“It probably is most useful if you can point to something objectively that you really believe might be in error or that is in conflict with circuit precedent, or with precedent from the Supreme Court,” she said.

Jones said she appreciates requests for rehearing that draw the court’s attention to a mistake that was made.

“We are a volume court,” she said. “We’ve traditionally been the first or second busiest court in the United States and because we’re trying to keep up with the flow we may make mistakes.”

Either way, she said, the “petition must really grab our attention.”

Amicus Briefs

While Jones said there are often too many amicus briefs filed in big cases, the ones she finds most helpful are those that talk about the practical impacts of a case.

“It can also be helpful in all the cases where we’re now dealing with matters of original intent with a much sharper focus than we did even five years ago,” she said. “Actual research and secondary authorities can be very helpfully cited to us.”

Haynes, meanwhile, took a different approach, telling the crowd what’s not helpful when it comes to these friend-of-the-court filings in support of one party over another.

Because the judicial branch is not a political branch, Haynes said she has to apply the law to the facts of a case whether she likes that law or not.

“So I don’t think political amicus briefs are particularly helpful,” she said.