Arguing and Appealing To The Third Circuit

The Third Circuit has posted audio recordings from its annual conference, including a session that discusses effective brief-writing and oral advocacy. The presentation describes how judges on the Third Circuit are flooded with a large number of cases and pieces of paper, so being clear is extremely important. In 2005, the Third Circuit held oral argument in around 22% of the appeals.

Conventional wisdom suggests limiting an appeal to 2-4 issues. I am not sure I agree, though, because of the huge penalty if you do not raise an issue. (Often, if you do not raise an issue, you can never raise it again -- sometimes, you can't follow up on the issue even if your case is sent back for a new hearing. The Third Circuit often rules that an immigrant deserves a new asylum hearing but because the appeal did not include the issue of relief under the Convention Against Torture, it can never be pursued again.)

Great points: be brief, be organized, keep case cites to a minimum, keep the factual history to a minimum, use informative headings, edit repeatedly. A strong brief takes time and energy to write and should not be delegated to a junior lawyer in the office.