The New York Association for the Advancement of Appellate Attorneys (NYAAAA) announced today that November is National Appellate Brief Awareness Month. Here are some helpful FAQ’s:
Q. What is an appellate brief?
A. Appellate briefs are those stacks of bound white paper with writing on them that court officers put on your bench at oral argument and remove and replace at random intervals.
Q. Will reading an appellate brief harm me or my family?
A. Not if you follow basic safety precautions, such as reading it a day or two before the argument. Opening it for the first time while the author is standing at the podium could be hazardous.
Q. Isn’t it true that in criminal appeals, the defense brief is immediately shrink-wrapped and opened only by security personnel five or ten minutes before oral argument?
A. That’s only in the First Department. The other three Appellate Divisions had to cease this practice due to budgetary cutbacks.
Q. Isn’t it enough just to tell the lawyers that we’re fully familiar with the facts and law of their cases? After all, if you’ve read one brief, you’ve read them all.
A. Lawyers who’ve written a brief, a reply brief and prepared for oral argument have an uncanny sixth sense for when you haven’t actually done the reading, or more to the point, when the clerk who drafted your bench memo hasn’t read anything except the People’s brief.
Q. How can they tell?
A. Generic questions like, “Why should we reverse Judge Blow?” or, “How else were the People supposed to get a conviction?” Or, “What about the gun?” when the charge was unlicensed vending of umbrellas. Snoring is also commonly, if unfairly, associated with an indifferent bench.
Q. We have 20 cases on the calendar! We’d be crushed, pulverized, utterly annihilated by overwork if we read all the briefs.
A. A few easy inexpensive tips could make things easier:
1. Have the parties notify the court through HOTBENCH@courts.gov.us. (or 1-800-ORALHOT for lawyers who don’t know how to use e-mail) whether they’re actually going to show up. That way you’ll know which briefs to read by the day of the argument.
2. Give the bench memo to the parties before the argument so everybody will be on the same page. Be sure it’s the right one for the case they’re arguing.
3. Have your clerks sign their bench memos. If they have some accountability they might start reading appellant’s briefs instead of just the People’s.
4. Instead of nagging at the lawyers to cut their time so you can be done by 5pm, tell them you’ll be happy to sit there for as long as it takes. Reverse psychology works much better. Didn’t any of you ever have kids? Or start out as one?
5. Studies have shown that judges do better when they’ve had something to eat. Take a halftime break for coffee and donuts. Nobody told you to sit there for hours and hours getting crabbier by the minute.