Susan Yorke
Of Counsel, California Appellate Law Group LLP
Susan served as a law clerk on the 9th Circuit for two judges and in the Appellate Division of the Oregon Department of Justice. Find out more about Susan and the California Appellate Law Group LLP at www.calapplaw.com. Appellate Zealots is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.
APPELLATE ZEALOTS
The last few months have been momentous for many reasons -- the turmoil over the presidential election, the approval of vaccines in the fight against COVID-19, and the long-awaited end to one of the most difficult years in recent memory. With so much going on, you may have missed the release of the 9th Circuit's updated rules, which took effect on Dec. 1, 2020. And while the new rules may not have been front-page news, every appellate advocate who practices in the 9th Circuit should be sure to familiarize themselves with the changes.
One of the biggest changes was to 9th Circuit Rule 30-1, which addresses the excerpts of record that most appellants must file along with their opening briefs. The excerpts of record have been a lingering source of confusion for litigants. Include too little, and you risk being called out by the other side (which can always file a supplemental excerpt of record). Or, worse yet, you could be chastised by the panel at oral argument for failing to provide it with everything necessary to decide the case. Include too much, and you burden busy judges with extra paper (or take up precious iPad memory) that they must wade through any time they want to find the documents that actually matter.
The new version of Rule 30-1 helps set the (excerpts of) record straight.
First, what should the excerpts contain?
The new Advisory Committee Note helps answer that question as a general matter: "The Excerpts of Record should be a well-organized and accessible compendium of all the documents in the record that are necessary to understand and decide the issues on appeal." Every assertion in the brief must be supported by a citation and, under the new rules, "citations directly to the record [e.g., to the district court docket] are not permitted except for purely background information, such as factual or procedural history, that is undisputed and provided only for general context." In other words, any parts of the district court record that you rely on in your argument or think the other side might dispute should be included in the excerpts of record.
Updated Rule 30-1.4 and the accompanying Advisory Committee Note spells out the contents of the excerpts in more detail. Usually, the excerpts should include the judgment or order appealed from, any other orders sought to be reviewed, any portions of the transcript discussing appealed oral rulings, any challenged jury instruction, and any other part of the record relied upon to support disputed assertions. Legal memoranda and briefs filed below typically are not relevant to the appeal (and thus not necessary to include in the excerpts) unless the appeal includes issues relating to waiver, forfeiture or exhaustion. Rule 30-1.4 and the accompanying note also list specific requirements for special kinds of cases like habeas, Social Security or bankruptcy appeals.
Second, how should you format the excerpts?
For excerpts that total less than 300 pages, everything can go in a single volume. For excerpts longer than that, only certain documents (listed in Rule 30-1.4 and the accompanying Advisory Committee Note) belong in Volume 1; everything else belongs in subsequent volumes. Usually, the order should be reverse chronological, unless you have a good reason to apply some other organizational strategy. The Advisory Committee Note to Rule 30-1.1.4 now clarifies what exactly is meant by reverse chronological order, including that transcripts of hearings spanning multiple days should appear in chronological order -- in other words, the court should be able to read through the entire hearing without having to flip back through the excerpts. And don't forget the index, which should include citations to where the documents can be found in the lower court record.
Third, how should you cite to the excerpts?
This question might sound simple, but the prior absence of a standard format led to significant variety in practice (and, at times, to some very creative punctuation). Previously, in striving to arrive at a formulation that was both reader- and word-count-friendly, all manner of dashes and abbreviations and omitted spaces were employed by various firms and practitioners. Those days are gone. Under the new version of Rule 30-1.6, citations to the excerpts of record must take a simple, readable form: [volume number]-ER-[page number(s)] (with the hyphens, so the citation counts as only a single word).
The recent rule changes include some other important modifications, too. These include changes to the rules and Advisory Committee Notes addressing the representation statement, requests to file oversized briefs, and the record on review of agency orders. Updated Rule 3-2 emphasizes the importance of the representation statement in the court's administrative process and directs all parties to carefully review the listed parties and attorneys, as well as the caption, for errors at the outset of every appeal and to notify the court of any corrections. Updated Rule 32-2 makes clear that motions to exceed the word count limit will not be granted absent extraordinary and compelling circumstances and cautions that "[m]ost overlength briefs could be shorter and unnecessarily burden the Court." And updated Rule 17-1 brings the record requirements on review of agency orders into alignment with FRAP 17 and the regular standards for the excerpts of record under Rule 30-1, described above.
The 9th Circuit also provides numerous forms that fulfill many of the requirements in the rules, like certifying word count in your briefs, so be sure to use those forms whenever possible. The forms are available on the court's website, which also includes a number of recently updated resources for practitioners. Confused about basic appellate procedure? Check out the Appellate Lawyer Representatives' Practice Guide or look into getting a 9th Circuit mentor through the Court's mentorship program. Unsure what needs to be in your opening brief? Take a look at the shell brief, which includes useful notes and practice tips, in addition to a formatted sample opening brief.
And of course, although the court's resources for attorneys unfamiliar with 9th Circuit practice are very helpful, if you have a high-stakes appeal, it's always wise to call in an experienced appellate attorney.