On March 11, 2015, Hawaii’s own Ninth Circuit Judge Richard Clifton joined the Hawaii State Bar Association’s Appellate Section for the regularly monthly meeting. Judge Clifton’s topic: News and Practice Pointers from the Ninth Circuit.
Judge Clifton provided the following news and information about the Ninth Circuit:
- The Ninth Circuit uses a limited en banc system for en banc matters because of its size, with 11 judges comprising an en banc panel;
- The Chief Judge is always one of the 11 en banc judges;
- The Ninth Circuit currently has 29 active judges and 15 judges on senior status;
- Active judges are expected to hear 32 days of oral arguments per year;
- Judges are assigned to hear cases out of Alaska and Hawaii by rotation, and no preference is given for judges from those jurisdictions;
- Upcoming Honolulu oral argument dates will be June 8 and October 13;
- Filings for are currently down 3% compared to last year;
- Pro Se filings account for 51% of the documents filed with the court;
- The largest category of pro se litigants are prisoners;
- 48% of all immigration appeals in the US are filed in the Ninth Circuit;
- From the entry of the final order of the lower court or agency to final Ninth Circuit disposition: 32.6 months
- From the filing of the law brief to oral argument or submission on briefs: 8.7 months in the Ninth Circuit (4.1 months nationally);
- The court is permitted to move cases up in priority;
- Priority is set by a staff attorney who assigns a number to each case based on a point system: 1, 2, 3, 5, 7, 10, and 24. Cases assigned 1 or 2 go to the screening panel for disposition. Cases assigned 24 always get oral argument, and involve matters like the death penalty. Cases assigned 3, 5, 7, or 10, will depend on the number of parties, the types of issues, etc. These cases may get oral argument, or be submitted on briefs;
- The assignment of the panel of judges is separate from assignment of cases;
- Panels are set 1 year in advance;
- The clerk’s office assigns cases based on a formula that includes priority
- 99% of petitions for rehearing en banc are rejected – a judge on the court must initiate the process for en banc rehearing, and a judge may do so even if there is no petition for rehearing en banc filed;
- If there is a second appeal to the court in the same case, the case is first presented to the original panel to see if they want to decide the second appeal – usually the panel will take back the case in approximately 1/4 to 1/3 of cases – if you want the same panel, file a motion to ask to have the case assigned to the same panel, but give good reasons why;
- Generally, most general civil appeals where the parties are represented by attorneys will get set for oral argument – but about 20-25% that are assigned to oral argument will ultimately be submitted on briefs instead;
Judge Clifton also provided the following practice pointers:
(1) Get to the point. A judge’s attention span is finite, and shorter briefs are more effective. Don’t wear out your welcome.
(2) Simply the case. Figure out why your client should win, and convey it in the simplest way possible.
(3) Keep your target audience in mind. What do the judges and law clerks need to know and want to know? You are writing to an educated audience.
(4) Keep your credibility. Beware of the potential to lose credibility with the court by pushing the law or the facts too far.
Mahalo as always to Judge Clifton for joining the section!