Seal of the United States Court of Appeals for...

Seal of the United States Court of Appeals for the Eleventh Circuit. (Photo credit: Wikipedia)

I attended an appellate practice continuing education seminar this past fall in which the Honorable Joel F. Dubina, Chief Judge of the Eleventh Circuit of the United States Court of Appeals was a guest speaker. Judge Dubina gave a very enlightening talk about the internal procedure the Court uses to screen appeals for whether there should be oral argument on the matter and how the Court makes its rulings on “non-argument” and “oral argument” cases.  His presentation and prepared materials provided great insight into the procedure used by the Court to decide appeals.

Unfortunately, while I am certain the judges of the Eleventh Circuit are intelligent, hardworking, and earnest jurists, I came away from the seminar wondering whether our federal judicial system can meet its goal of the proper administration of justice when the number of appeals in that circuit have doubled over the last 20 years (from about 4,000 in 1990 to about 8,000 in 2010), the number of judges has not, and thus the time spent on any individual matter has greatly decreased. This is reflected by the fact that over the same period of time the percentage of appeals decided with the benefit of oral argument has fallen from 52% to only 18%.

In the Eleventh Circuit, appeals are decided in the first instance by a three judge panel. As described by Judge Dubina, there appears to be four different paths an appeal may follow on its way to  resolution after briefing is completed:

  1. After review by a staff attorney who reviews jurisdiction and other issues and prepares a memorandum recommending whether oral argument is warranted (and possibly even a proposed opinion), the case is assigned to one of the Court’s active judges or senior judges for initial screening regarding oral argument. If the judge determines that oral argument is necessary then that appeal will be assigned to the oral argument docket and is decided by a different panel of judges.
  2. If the “screening judge” determines that oral argument is unnecessary, that judge will then prepare a opinion deciding the appeal, which is then forwarded to to other judges on the panel. It is these opinions that Judge Dubina was referring to as the “bread and butter” of the court.  These opinions are most often decided unanimously by the two other judges concurring with the proposed opinion. This is because, according to Judge Dubina, even if the initial vote is 2-1, for the sake of collegiality between judges, the dissent is likely to be withdrawn.
  3. If oral argument was requested and originally denied by the “screening judge” but another judge on the panel determines oral argument is needed, or if there is a vote that ends 2-1, the appeal will be removed from the non–argument docket and placed on the oral argument docket.
  4. If the screening judge determines that oral argument is needed then the appeal is placed on the oral argument docket and almost assuredly assigned to a new panel. The makeup of oral argument panels and the schedules for oral argument are set about a year in advance.  Following each day’s oral argument,  the cases argued are tentatively voted on the judges on that new panel and one judge is assigned to write a proposed opinion. That opinion is then voted on and the opinion is released in a majority vote is reached.  If the other judges dissent, then the matter is reassigned to one of the other judges to write the opinion of the Court.

As noted by Judge Dubina, over 80% of matters before the Eleventh Circuit are decided without oral argument.  One benefit of oral argument in this instance is that counsel have the opportunity to directly interact with all three members of the panel, and the arguments in appellate briefs are considered by all of those judges before a proposed opinion is authored and circulated. Without oral argument, only one of the judges, the screening judge,” reviews the briefs before an opinion is written, and thus the other two judges view those briefs through the lens of the holding of the proposed opinion (which I found from my years as a staff attorney at the Alabama Supreme Court is naturally and almost always read prior to the briefs).

I believe this non-argument procedure naturally skews the result in favor of the other two judges on the panel concurring with the proposed opinion. While this is also true as to non-orally argued cases at the Alabama Supreme Court, that court sits in five-justice divisions and very many cases are decided en banc by all nine justices. The review given by the additional justices provides a greater opportunity for dissenting opinions to emerge, such that the full spectrum of possibilities on the appeal is protected.

In my view, the procedure used by the Eleventh Circuit to decide 80% of appeals makes the review of the appellate briefs by the screening judge almost entirely determinative of the appeal. This means that as an advocate for your client you must write a brief that quickly engages the screening judge and sways the judge to your side. This is especially true if you are an appellant and seek a reversal. The standards of review often heavily favor the appellee and in my experience most appellate judges disfavor reversal of a lower court unless they believe it is absolutely necessary under the facts and circumstances of a particular case.

So, to win on appeal, lead with your best facts, lead with your best argument, and, for your client’s sake, make it interesting. Take advice from Judge Ruggero Aldisert of the Third Circuit Court of Appeals: “You better sell the sizzle as soon as possible; the steak can wait.”

If you feel you need help writing or editing a brief, contact me through the web site for my freelance legal writing service, Appeals and Briefs by Michael Skotnicki, Esq., found either through clicking the logo on this page or via this link, www.appealsandbriefs.com.

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