Category Archives: Briefing

December 15, 2011

Some basics about briefing

Yesterday’s decision in Provost v. Regents of the University of California, et al., case no. G043523, offers some reminders on briefing. For those of you completely new to this, consider the sequence of briefing before you read any further: the appealing party (“appellant”) files his opening brief, the party defending against the appeal (the “respondent”) files his respondent’s brief, and then the appellant, at his option, files a reply brief.

Let’s start with the appellant’s opening brief, which the court criticized for at least two deficiencies. The first was the appellant’s failure to present his arguments correctly:

[S]ome of plaintiff‟s arguments are not confined to the point raised in the heading, also a violation of court rules. (Cal. Rules of Court, rule 8.204(a)(1)(B).) And many of the same arguments are repeated throughout the brief under various headings. Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument.

Got that? Even if you actually make an argument, merely presenting it incorrectly can result in it being ignored by the court. I suspect this is rarely prejudicial to the appellant, however. An argument that doesn’t merit its own heading from the writer probably isn’t a good argument in any event. But if the court refuses even to consider it, you’ll never know.

Appellant’s other sin was even more basic:

Defendants argue the opening brief should be stricken, justifiably taking exception to plaintiff‟s failure to provide record references in violation of California Rules of Court, rule 8.204(a)(1)(C). . . . In addition, we will generally consider only those facts and arguments supported by adequate citations to the record.

Put yourself in the Justice’s shoes (or at least the shoes of their research attorneys) for a moment. In front of you is a brief referring to evidence and proceedings in the record without telling you where any of it actually is in that record, which may be hundreds (or conceivably thousands) of pages long. Are you going to try to hunt those pages down?

The court declined to strike the appellant’s opening brief, as respondents requested, demonstrating some of the patience the Court of Appeal is generally known for, but should not be taken advantage of: “Although we decline to strike the brief, this should not be interpreted as approval of plaintiff‟s violation of the appellate rules.”

So, let’s get to the problems with the Reply Brief.

Appellant’s first mistake was filing a reply brief in excess of the word limit, apparently without a motion for permission to do so. The court rejected the brief, and in its order directing the appellant to file a compliant reply brief, cited the second problem with it: “we reminded [appellant] he could not raise new issues or ‘rewrite his opening brief.’ ” Despite this warning, the appellant’s revised reply brief did it anyway:

In addition, we will not address arguments raised for the first time in the reply brief (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766) or documents in [appellant's] “Reply Appendix” filed with his reply brief because defendants lacked the opportunity to respond.

Appellant also tried with his reply brief to correct his failure to cite to the record in his opening brief:

In the reply brief, plaintiff supplies some record references although they are still incomplete, but this is too little, too late because defendants did not have the opportunity to respond.

You’d think from the name that the function of a reply brief — or at least its limited scope — would be obvious. The first definition that comes up for the word reply on dictionary.com is: “to make answer in words or writing; answer; respond[.]” (My emphasis.) As the opinion in Provost demonstrates, judicial treatment of reply briefs enforces this common sense notion, and will not allow an appellant to make arguments against which the respondent has no opportunity to defend.

The appellant in Provost lost sight of the proper purpose of a reply brief. Instead of responding to the arguments raised in respondent’s brief, the appellant apparently tried to correct defects in his opening brief. I can see how that might be tempting if you’re unfamiliar with the rules (or familiar with them, but desperate), but compounding initial briefing errors with more briefing errors didn’t get this appellant very far.

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Posted in: Appellate Procedure, Briefing

August 18, 2008

The Results of the Shootout at the Amicus Corral

In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51).  The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons.  The Supremes find no such exception under the federal or state constitutions.  The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense to a sexual orientation discrimination claim.

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Posted in: Briefing, Civil Rights, Constitutional Law, First Amendment

August 6, 2008

The Value of a Good Reply Brief

As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.”

Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one.

If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs and got responses from 25 of them. Reporter Mike McKee’s write-up of their responses describes some pitfalls for appellants’ counsel to avoid and how the justices approach brief reading, among other things.

Hat tip: The Appellate Practitioner.

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Posted in: Briefing, Legal Writing

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July 16, 2008

It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story.

Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

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Posted in: Appellate Procedure, Briefing, Ethics, Legal Writing

May 20, 2008

Tips from Appellate Court Research Attorneys

Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court.  I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.”  There’s plenty more.

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Posted in: Briefing, Legal Writing

April 23, 2008

An Easy Cure for Citation Anxiety

Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.

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Posted in: Briefing, Legal Writing

April 21, 2008

The Limits of Wende

Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right.

People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to outpatient status briefly before the court granted a petition to revoke his outpatient status. Dobson then petitioned for release on the ground of regained sanity and lost.

Dobson appealed, and his appointed counsel on appeal filed a Wende brief asking the court of appeal to independently review the record. The issue decided by the court here is whether they are required to conduct such an independent review under the circumstances.

The court of appeal concludes an independent review of the record is not mandated by Wende and dismisses the appeal. A petition for release is not a criminal proceeding, and the due process protections nonetheless present make an erroneous decision sufficiently unlikely that an independent review isn’t warranted.

There’s more to the analysis, of course, and the case serves as a pretty good primer on the test for evaluating when independent review is necessary.

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Posted in: Appellate Procedure, Briefing, California Procedure, Standard of Review, Waiver of Issues

March 10, 2008

E-Filing Briefs in the Supreme Court

blog-announce.jpgRule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief.

I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then.

Hat Tip: Jeffrey Lewis at Nota Bene.

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Posted in: Appellate Procedure, Briefing, California Supreme Court, Legal Technology

December 10, 2007

The Record is Everything

Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record.  Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position.

Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the case to remind us of the importance of making the record.

And Professor Martin at California Appellate Report uses the occasion to provide one of his patented rewrites to show what Judge Kleinfeld was really thinking.

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Posted in: Appellate Procedure, Briefing, Record on Appeal

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December 5, 2007

Things You Don’t Want to Read about Your Work

I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007).  But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion.  Or at least one of them.

Its a case brought by a plaintiff who alleges various constitutional violations against city cops.  The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports.  Both sides appealed.

Issue 1: Sufficent evidence of excessive force?  Well, not so fast.  Writes the court (emphasis mine):

Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force.  At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts.

Talk to just about any appellate jurist, and he or she will tell you that trial lawyers do this all the time.  Not every trial lawyer, of course.  Not even most.  But enough to present a steady stream of attorneys at oral argument arguing passionately to the justices as if they were wearing juror badges instead of black robes.

Issue 2: Qualified Immunity?  Strike Two:

Defendants raise several arguments to the effect that the trial court erred in not sustaining their defense of qualified immunity.  As with the challenge to the evidence of excessive force, their appellate presentation is so fundamentally flawed that it is unnecessary to delve into the applicable substantive law.

The court can’t make heads or tails of this portion of the brief.

Issue 3: Is the federal excessive force claim time barred?  This time, the problem is with the dissenting justice as well as the defendants.  The court says its adoption of the dissent’s position that the court should have granted summary adjudication on the federal excessive force cause of action

is precluded by two seemingly insurmountable obstacles:  (1) defendants have expressly disclaimed any such claim of error, and (2) they never made a motion to adjudicate the “federal excessive force cause of action.”

And still 72 pages to go!

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Posted in: Appellate Procedure, Briefing, Standard of Review, Waiver of Issues

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November 29, 2007

Follow the Rules – A Lesson from the Ninth

Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.”

The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all.

The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.

You’re thinking, “Well, that’s what you get for proceeding in propria persona,” right? Think again. Appellant had counsel. Yet the analysis and citation to evidence (it was an appeal from summary judgment) were also deficient:

Bare assertions and lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”

Despite the court’s assertion that it was publishing the case “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” it nonetheless conducts an independent review of the record in recognition of “the harshness of this rule, especially as its application could, if unwisely applied, leave a meritorious appellant without a legal remedy when the fault lies solely with his or her counsel.”

With this concern in mind, and despite the abject deficiency of the brief, we have reviewed Sekiya’s case on the merits based on a review of the district court record, and we are satisfied that the district court did not err.  Sekiya, however, is not “entitled to have us expatiate on our reasons for finding [her] case unmeritorious.” [Citation.]

Maybe the part I liked best was this quote:

In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. [Citation.]

I think if I were a legal writing professor, I might talk about this case with my students and keep the phrase “slubby mass of words” handy.

UPDATE (12/5/07):  Lowering the Bar coins the term “Slubby Mass Rule” and delves into the etymology of “slubby.”

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Posted in: Appellate Procedure, Briefing, Federal Procedure, Sanctions

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October 24, 2007

Failure to Brief and the Bounds of Discretion

Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action.

First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right?

Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error. Thus, as the Nakamura court reminds us:

Parker’s failure to file a respondent’s brief means that we “decide the appeal on the record, the opening brief, and any oral argument by the appellant” (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a)), examining the record and reversing only if prejudicial error is shown. [Citations.]

I imagine an unopposed appellant who loses might feel pretty badly about not prevailing, but it may just be that the appeal was doomed from the outset, opposition or not.

In this case, however, no such soul searching is necessary. The Court of Appeal finds that the trial court abused its discretion in denying the restraining order. Which leads us to the second issue.

Second Issue: In an order reviewed for abuse of discretion, how is the scope of the trial court’s discretion defined? Answer: By the scope of the law at issue.

The scope of discretion always resides in the particular law being applied by the court, i.e., in the “legal principles governing the subject of [the] action . . . .” City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297; County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [“range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) As Nakamura’s petition is not jurisdictionally defective, it may be summarily denied only if the facts she alleged fail to constitute “abuse” within the meaning of the DVPA.

Here, there was plenty in the applicant’s sworn declaration showing that her estranged spouse committed acts constituting abuse justifying a restraining order under the DVPA.

But I have to wonder how much of a victory this is for the current litigant. The denial of the protective order was more than 14 months before her victory on appeal. Usually, there is great urgency to DVPA restraining orders. At least this should help the next victim of abuse. Which is why, I’m sure, amicus briefs were filed by 11 organizations.

UPDATE (10/25/07):  A Bay Area colleague e-mailed me a link to coverage of this case in the San Francisco Chronicle.

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Posted in: Appellate Procedure, Briefing, California Procedure, Family Law, Standard of Review

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September 26, 2007

Skilling’s 58,922-Word Brief Accepted by Fifth Circuit

The WSJ.com Law Blog reports that the Fifth Circuit has granted former CEO executive Jeff Skilling’s request to file an overlength brief.  WSJ.com has posted the Fifth Circuit’s order, which allows Skilling to file his brief of 58,922 words — 44, 922 words over the normal limit, or more than 4 times the maximum length provided by the rules — and grants permission for the government to do the same.

My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here. 

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Posted in: Appellate Procedure, Briefing, Legal Writing

September 14, 2007

Failure to Address Contrary Authority Again Draws Fire

Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it.  This week, it’s the California Court of Appeal’s turn, in a slightly different context. 

Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the issue.’”  Interestingly, this case is much different from the federal case profiled last week.  Here, the attorney is scolded not for withholding authority, but merely failing to address a controlling authority briefed by the other side.

I don’t agree with the court’s rationale regarding ethics.  The court relies on Rule 5-200 of the Rules of Professional Conduct:

In presenting a matter to a tribunal, a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.

Failing to address authorities openly cited by your adversary does not strike me as dishonest, misleading, an artifice, a misquotation, or citation of an invalid authority.  Likewise, I think the court was wrong to cite ABA Model Rule 3.3, which prohibits a lawyer from making a false statement of law or from failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” (Emphasis added.)

Here, the cases the party ignored were cited by the other party and discussed extensively in the other party’s briefs.  Nobody concealed anything, except in the sense, perhaps, that by not discussing the adverse authority, the attorney was hoping the court would overlook it.

Whatever the ethics, sticking your head in the sand as soon as your opponent cites adverse authority obviously isn’t smart, as Tom notes in greater detail (along with providing some of the court’s ethics rationale) at his post.

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Posted in: Briefing, Ethics

September 12, 2007

Availability of Electronically Filed Briefs in U. S. Supreme Court

SCOTUSBlog has information regarding the upcoming online availability of briefs filed electronically with the U.S. Supreme Court.

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Posted in: Appellate Procedure, Briefing, U.S. Supreme Court

September 10, 2007

Roundup: Skilling’s Brief

Former Enron executive Jeffrey Skilling’s brief in the appeal of his criminal conviction states in support of his request for oral argument that his prosecution was “perhaps the most prominent and publicized white-collar case ever prosecuted.”  One might guess he felt that way from the length of his opening brief: 237 pages and roughly 60,000 words.

The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first.  It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes.  While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but who dont want to slog through the whole brief) should read the detailed analysis at White Collar Crime Prof Blog.

Of course, as How Appealing notes, the court first has to approve Skilling’s motion for permission to file the lengthy brief, which is more than four times the length permitted by the Federal Rules of Appellate Procedure.  To demonstrate the complexity of the case, that motion (PDF) notes that the record on appeal is nearly 47,000 pages long.

Ohio State law professor Douglas Berman at Sentencing Law and Policy posts about how this will likely stretch out the resolution of the appeal significantly.

The cleverly named Tex Parte Blog asks, “How much did that brief cost per page?”

Lowering the Bar’s take has the usual dose of humor, but is actually complimentary of the quality of the brief.

Finally, it’s interesting that a search for “skilling appeal brief filed” at Jurist reveals a single, two and a half-year-old mention of Skilling’s trial, but also advises: “

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Posted in: Appellate Procedure, Briefing, Legal Writing

July 9, 2007

Amicus-Palooza

This article at Law.com discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892.  Forty organizations have filed amicus briefs, either individually or jointly.  As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian?

Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case?  This case has a lot, but I suspect the record number is a lot higher.  The article doesn’t say.  Anyone out there know?

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Posted in: Appellate Procedure, Briefing, California Supreme Court

July 5, 2007

California Supremes on the Right to Rehearing on Unbriefed Issues

When is a party entitled to a rehearing from the Court of Appeal?  One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081:

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.  If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any
party.

Seems rather straightforward, right?  Perhaps that’s why the Supreme Court confesses in today’s unanimous opinion in People v. Alice, case no. S144501 (July 5, 2007), that “we never have examined [Government Code section 68081's] meaning in depth.”  It then proceeds to do just that, providing some valuable lessons . . .

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Posted in: Appellate Procedure, Briefing, California Procedure, California Supreme Court, Rehearing

June 12, 2007

Citations to Large, Multi-Volume Appellate Records

New Orleans appellate attorney Raymond Ward has a very logical post at the (new) legal writer explaining why an attorney should, even if not required by the rules, include volume numbers in citations to multi-volume appellate records.  I know I would prefer to receive a brief that did this than one that does not.

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Posted in: Briefing, Legal Writing

May 3, 2007

Is it Futile to Cite Federal District Court Opinions? (Updated)

At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion.

Bashman appears to doubt lawyers will heed this advice:

The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited.

I think he’s right. And opposing lawyers will always feel compelled to respond on the merits rather than point out the cited case’s lack of authoritative effect.

UPDATE (5/4/07): I got to thinking about this post last night and had some thoughts for updating it today. It could wait until my thoughts formed more completely. After all, the blog was only in its fourth day and had a total of 20 or so hits. Then I woke up to see the avalanche of hits from the How Appealing blog (thanks for the traffic, Mr. Bashman) and wished I stayed up late last night to update.

There’s a good reason lawyers will always feel compelled to respond to the merits of a cited district court opinion. They should — at least if the merits were presented. The key is to stick to the merits without fighting over the significance that the point has been adopted by a district court.

Take a close look at where the Seventh Circuit drew the line. Here is what Chief Judge Easterbrook’s opinion said:

Finally, the litigants have debated at length the significance of Chicago Truck Drivers Health & Welfare Fund v. Teamsters Local 710, 2005 U.S. Dist. LEXIS 42877 (N.D. Ill. Mar. 4, 2005), which discusses the handling of stock received in demutualization. It is a pointless debate. The Teamsters’ plans have terms different from those of the Professional Benefit Trust. What’s more, decisions of district judges have no authoritative effect. [Citations.] District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.

What’s the difference between arguing “whether the case was correctly decided” and “weaving its wisdom” into a brief, after which the parties will debate that wisdom? The only difference seems to be an actual citation to the opinion. Thus, the bottom line appears to be that the court wants to hear an argument about the merits of a position taken by a district court, but it doesn’t (or at least shouldn’t) care that a district court has actually adopted that position.

Fight over the merits of an idea, proposition, argument or what have you all you like. Just don’t slug it out over the significance of a district court having said it.

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Posted in: Appeals, Appellate Procedure, Briefing, Federal Courts, Federal Procedure, Legal Writing