Memo from Reed to Ifill; Requirements Briefs and Record Excerpts; Appendix to the Briefs; Rules on Fifth Circuit Appeals

    MEMORANDUM 

To: 

From: 

Date: 

Re: 

Sherrilyn Ifill 

Judith Reed 

4, 1989 

peal 

e received our briefing schedule: the main brief 
is now due 40 days from October 19th or TUESDAY, NOVEMBER 28, 
1989. Attached is a copy of the notice and instructions from the 
Fifth Circuit, since Steve Ralston has informed me that you'll 
be drafting the brief. Bill Quigley is sending the record today 
by UPS. 

During a meeting with Lani Guinier and Chambers, we 
agreed that we will not file a motion to expedite the appeal, but 
we will (a) ask the court to advance oral argument on the 
calendar after briefing and (b) try to get a stay of the election 
pending appeal. (Apart from client considerations, the reason 
for doing the latter is that we want to make a record for seeking 
similar relief in the Supreme Court, if necessary.) Under FRAP 8 
we are required to seek this stay from the district court first. 
We probably can hold off filing for the injunction, however. 

I spoke with Justice, and the brief has been assigned 
to Iry Gornstein. Justice plans to file their own notice of 
appeal; the time for filing it runs on or about November 17th. 
Presumably, the appeals will be consolidated and another briefing 
schedule set. Justice has informally agreed to stick as close to 
our schedule as possible, but it is safe to assume that there 
will be some delay. 

Attach. 
cc: Charles Stephen Ralston 

Lani Guinier 
Pamela Karlan 



UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

CHECKLIST OF RULE REQUIREMENTS FOR PREPARATION OF BRIEFS AND RECORD EXCERPTS  

NOTE: All copies should be checked for rule requirements before mailing. 

1.) CONTENTS OF BRIEFS See Local Rule 28.3 for the order of contents as 
they are to appear in the brief. In addition to FRAP 28, Local Rule 28 
has the following additional requirements): 

a) Certificate of Interested Persons (Loc.R. 28.2.1) 

b) Request for Oral Argument (Loc.R. 28.2.4) 

C) Statement of Jurisdiction (Loc.R. 28.2.5) 

d) Summary of Argument (Loc. 28.2.2) 

e) Certificate of Service  

2.) FORM (FRAP and Loc.R. 32. See also Loc.R. 39 on reverse side regarding 
type of duplication and recoverable costs therefor.) 

Standard Printing Duplicated Process  

a) Lines Per Page 34 27 

b) Size of Paper 6 1/8 X 9 1/4 8 1/2 X 11 

c) Type Matter Size 4 1/6 X 7 1/6 6 1/2 X 9 1/2 

d) Printed Matter  
Type Size 11 Point 11 Point 

e) One Side of Sheet  
Printing No Yes 

f) Footnotes 9 Point 11 Point 
(Single Space) (Single Space) 

(NOTE: Footnotes must not be used to expound on arguments). 

3.) LENGTH OF BRIEFS (FRAP 28(g) and Loc.R. 28.1) 

Principal Briefs 50 Pages ) Excluding table of contents, table 
) of citation, Rule 28 certificate, 

Reply Briefs 25 Pages ) request for oral argument, and any 
) addendum of statutes, etc. 

4.) COVER AND BINDING OF BRIEF (Loc.R. 32 Requirements) 

a) Durable cover on both front and back. 

b) Bound to permit brief to lie flat when open, i.e. spiral binding. 
Cost of this type binding may be recovered. See Loc.R. 39 on 

reverse side, 

c) Name of the party on whose behalf the brief is filed must be 
clearly indicated on cover. 

d) Color 

Brief of Appellant - Blue 
Brief of Appellee - Red 
Reply Brief of Appellant - Gray 
Brief of Appellee-Cross-Appellant - Red 
Brief of Cross-Appellee - Red 
Reply Brief of Cross-Appellant - Gray 
Intervenor or Amicus - Green 
Supplemental Brief - White 

5.) NUMBER OF COPIES (Loc.R. 31.1) - 7 copies - all cases. 

6.) LEGIBILITY - FRAP 32 requires "a clear black image on white paper". 

7.) RECORD EXCERPTS - See Loc.R. 30 on reverse side. Read carefully, 
especially last paragraph of Loc.R. 30.1. 

8.) PRINTING COSTS - Local Rule 39 limits the recoverable reproduction cost 
to a maximum of $ .25 per page. See rule on reverse side. 

9.) FILING AND SERVICE - See FRAP 25 and 31. Since briefs are deemed filed 
on the day of mailing or transmission, if sent by the most expeditious 
form of delivery short of special, the cost of expensive special and 
express delivery cannot be allowed as taxable or recoverable costs on 

appeal. 
BR-13 
Rev. 12/88 



••• 

••••• 

Loc.R. 30 APPENDIX TO THE BRIEFS  

30.1 Appendix - Appeals from District Courts and the Tax Courts. Appeals from District 
Courts and the Tax Court shall be on the original record without requirement of the appendix prescribed by 
FRAP 30. At the time of filing appellant's brief, appellant shall file 4 copies of the following portions of the 
district court record, to be bound together, but not in the brief: 

The district court docket sheet; 

The judgment or interlocutory order appealed from; 

Any other orders or rulings sought to be reviewed; and 

Any supporting opinion, findings of fact or conclusions 
of law filed or delivered orally by the district court. 

Such copies shall be reproduced on white paper by any duplicating or copying process 
capable of producing a clear black image, with a cover sheet bearing the case number and style and captioned 
"Record Excerpts". 

If a handwritten or other exhibit is not clear and readily legible, that exhibit shall be 
typed or printed in the same size required for briefs. Illegible words and phrases shall be so identified. 
Record excerpts shall be bound so as not to obliterate any material on the original (such as filing dates on the 
district court docket entries) and SC, tu leave all of the material reproduced readily legible whili he binJe 

containing the record excerpts is opened. 

I.O.P. - Optional Contents - Appellant may add to the mandatory Record Excerpts brief 
extracts from the pleadings, charge, transcript or exhibits if they are essential to an 

understanding of the issues raised. 

At the time appellee's brief is filed, appellee may add other such extracts 
thereto. All parties are cautioned that over-designation of materials for inclusion in the 
appendix so impaired that document's usefulness that the Court decided to dispense with it and 
consider all appeals on the original record. If non-essential materials are included in the 
record excerpts, its usefulness to the Court as a convenient adjunct to study of the briefs will 
be diminished. The fact that parts of the record are not included in the record excerpts shall 
not prevent the parties or the Court from relying on such parts. The Court will have before it 
the entire original record when making its decision. 

Such additional excerpts shall be reproduced on white paper by any duplicating or 
copying process capable of producing a clear black image, with a cover sheet bearing the case 

number and style and captioned °RECORD EXCERPTS.. 

30.2 Appendix - Agency Review Proceedings. Petitions for review of orders of an 
administrative agency, board, commission or officer shall proceed on the original record on review, without 
the requirement of the appendix prescribed by FRAP 30. 

If a certified list of documents comprising the record is filed in lieu of the formal 
record, petitioner shall prepare and file with the Court and serve on the Agency, Board or Commission a copy 
of the portions of the record relied upon by the parties in their briefs, to be suitably covered, numbered and 
indexed and filed within 21 days from the date of filing of respondent's brief. 

Except in review proceedings covered by Loc.R. 15.3, at the time of filing petitioner's 
brief, petitioner shall file separately 4 copies ur any ozder sought.to be rv,ievied and any supporting r.pi.nion : 
findings of fact or conclusions of law filed by the agency, board, commission or officer. 

Loc.R. 39 COSTS 

Taxable Rates - The cost of reproducing necessary copies of the briefs, appendices, or 
record excerpts shall be taxed at a rate not higher than twenty-five cents per page, including cover, index, 
and internal pages, for any form of reproductive costs, except that the cost of the binding suggested in Local 
Rule 32 that permits briefs to be bound so as to lie flat when open, shall be a taxable cost but not limited to 
the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable 
method of reproduction generally available; and the Clerk shall, at reasonable intervals, examine and review 
it on his own authority to reflect current rates. Taxable costs will be authorized for up to 15 copies for a 
brief and 10 copies of an appendix or record excerpts, unless advance approval for additional copies is given 

by the Clerk. 

BR-13(a) 
Rev. 1/88 



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PREPARING YOUR APPEAL TO THE FIFTH CIRCUIT* 

Read F.R.A.P. Rules 28 and 30 and Local Rules 28 and 30. 
These are in the green loose-leaf book that was mailed to you 
on admission to the Fifth Circuit Bar. No matter how many 
briefs you have prepared, rereading these few pages will help 
you. If you have not prepared many briefs, reading this 
material is indispensable. 

The following additional information will help you to prepare 
your record excerpts and brief in the manner most helpful to 
the Court and, therefore, most likely to help your client. 

1. Timing: Whether you are the appellant or the appellee, 
start working on your brief when the notice of appeal is filed or 
soon thereafter. Do not wait until a few days before the brief is 
due. If you represent the appellant, you will find it feasible to 
write most of your brief before you receive the transcript, leav-
ing blanks to insert page citations. If you represent the ap-
pellee, you should be able to complete most of your research 
before receiving the appellant's brief, because you should 
know, or should be able to learn by communicating with oppos-
ing counsel, the issues to be raised. 

2. Record excerpts: By Local Rule 30, the Court has dispensed 
with the requirement of a formal appendix. Instead, you are per-
mitted to file much briefer and less expensive record excerpts. Each 
of the members of the panel will receive a copy of the record excerpts 
(but not the record) and of each brief. If the record excerpts con-
tain a district court opinion, that opinion will help the court to under-
stand the issues raised on appeal. In the usual case, however, counsel 
must explain the case in the briefs so that the issues will be clear 
to someone who did not sit through the trial and who has not read 
the record. It is particularly important for the appellant to do this, 
both to enable the court to understand the issues and to enable the 
appellee to point out the facts and legal arguments that are disputed. 

Put what is essential to understanding the case in the record 
excerpts or in the briefs. But do not go so far that you convert the 
record excerpts into an old-fashioned appendix. The Fifth Circuit 
10P warns: "All parties are cautioned that over-designation of 
materials for inclusion in the appendix so impaired that document's 
usefulness that the Court decided to dispense with it and consider 
all appeals on the original record. If non-essential materials are in-
cluded in the record excerpts, its usefulness to the Court as a con-

*This material is sent to counsel when the briefing notice issues. 

June 1, 1985 



er 

• 
• 

venient adjunct to study of the briefs will be diminished. The fact 
that parts of the record are not included in the record excerpts shall 
not prevent the parties or the Court from relying on such parts. The 
Court will have before it the entire original record when making its 
decision." 

The Fifth Circuit KW permits you to add to the record ex-
cerpts "brief extracts from the pleadings, charge, transcript or 
exhibits if they are essential to an understanding of the issues 
raised." If the correctness of a jury charge is challenged, set 
forth that part of the charge. If the failure to give a charge is 
challenged, set forth the charge requested. 

The record excerpts must be reproduced and bound in such 
manner that all material on them is clearly legible. There must 
be a clear black image on white paper and the size must be 11 
point. If an original exhibit that should be included in the 
record excerpts does not meet these requirements, retype it or 
have the text printed. You may ask opposing counsel to 
stipulate that your reproduction is accurate. Remember: 
before the judges can understand the material, they must be 
able to read it. The record itself will be in the Clerk's Office in 
New Orleans. The judges do not usually send for it before oral 
argument. 

3. Addendum to the briefs including reproduction of 
statutes, rules, regulations, etc.: A short addendum to 
your brief is permitted. If, for example, interpretation of a 
statute or a regulation is involved, set forth the part of the 
statute or regulation in an addendum to your brief. If the inter-
pretation of a part of a contract is at issue, set forth that part 
of the exhibit in the appendix. Such an addendum assists the 
judges by setting forth material that is not in the record ex-
cerpts but should be made available. Some of the judges 
review the briefs in their homes and do not then have access to 
the record or to a library. Your brief, including any addendum 
to it, read together with the record excerpts, should be com-
plete enough to enable the judges to understand the case and 
your position. 

4. Form: Your brief must be typed or printed in double-
space size 11 point type. Footnotes must be in the same size 
type but can be single spaced. You should not use footnotes to 
expound on your argument. Lengthy footnotes should be 
avoided. Your brief may be printed or typed. It should be 
bound in a manner that will permit it to lie flat when opened. It 
must be so bound if the binding material is plastic or some 
other material not easily folded. 



- 

a6 

5. Certificate of interested persons: Be certain this is 
complete and that it includes all lawyers and law firms that 
have been involved in the case as well as all interested parties. 

6. Statement regarding oral argument: If you do not re-
quest oral argument, the Court will consider this as a waiver. 
This does not mean that the case will appear unimportant to 
the Court or receive less consideration. It simply means that 
you think the issues are adequately presented in your brief, or 
that, for economic or other reasons, you do not desire oral argu-
ment. 

7. Statement ofjurisdiction: Be certain the Court has jurisdiction. The 
following judgements are appealable: final judgements (28 U.S.C. § 
1291); orders granting or denying an injunction (28 U.S.C. § 1292(a) (1)); 
judgments final in effect and collateral (Cohen v. Beneficial Industrial 
Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)); orders 
appointing receivers or refusing to wind up receiverships (28 U.S.C. § 
1292 (a) (2); and interlocutory decrees determining the rights and liabilities 
of parties to admiralty cases (28 U.S.C. § 1292 (a) (3). No other judgments 
are appealable unless entered as a final judgment because there is no just 
reason for delay, pursuant to Fed.R.Civ.P. 54 (b) or certified for immediate 
appeal pursuant to 28 U.S.C. § 1292 (b) (See FRAP 5). 

8. Statement of issues presented for review: Although 
your statement of issues should be succinct, it should be suffi-
ciently self-explanatory to enable a judge to understand the 
nature of the issues by reading only the statement. It is not 
helpful to the court for you to state the issues as: "Did the 
district court err in failing to give a requested jury charge con-
cerning specific intent?" It is helpful for you to frame the issue 
this way: "The defendant was charged with conspiracy to im-
port cocaine. The judge was requested to charge the jury that 
the prosecution must prove that the defendant had the inten-
tion to join a conspiracy and did so knowingly. The court re-
fused to do so. Was this error?" 

9. Statement of the case: 

(1) Course of proceedings and disposition in court 
below: Give a succinct but complete history of the case. 

(2) Statement of facts: This should be in chronological 
and narrative style. It should identify those facts about which 
there is contradictory testimony or some other dispute and 
those that are undisputed, giving citations to the transcript. It 
should not be a resume of the testimony of each witness. 

10. Summary of the argument: This should elaborate on 
the issues presented and should be a brief statement of why 
the court should rule in your favor on each issue. Put yourself 
in the imaginary position of being required to summarize your 



case in two minutes, and give us that summary, remembering 
that all the judges know about the case when they first read 
the briefs comes from the record excerpts and the briefs. 

11. Argument: It is helpful to you and to the Court if you 
state the standard of review for each issue in the case at the 
beginning of the argument on that issue. If there are several 
issues, the standard may be different on each. Starting with 
the standard focuses the parties' attention on the degree of 
persuasion necessary for reversal and also assists the Court in 
doing so. 

Cite authority for each legal proposition. This will not only 
support your statement but will enable the panel members to 
authenticate it. The most helpful citations are decisions by the 
Supreme Court, the Fifth Circuit Court of Appeals, and, in 
diversity cases, decisions of the appropriate state courts. In 
addition, it is helpful to give citations to the decisions of other 
federal courts of appeals, authoritative texts (e.g. Wigmore on 
Evidence, Moore's Federal Practice, Wright & Miller, Federal 
Practice), and law review articles. If other circuits have de-
cided a question, but this circuit has not, you must cite the 
other decisions whether or not they support your position. 
Chain citations are never helpful and should be avoided. 
Lengthy footnotes should also be avoided. 

Check your citations. Each citation should be both correct 
and complete. If you refer to a specific part of an opinion or 
text, give the exact page citation. A good guide to citation 
style is "A Uniform System of Citation", now in its 13th edi-
tion, available from the Harvard Law Review Association, 
Gannett House, Cambridge, Massachusetts 02138. 

12. Conclusion: Sum up your argument and tell us exactly 
what relief you think we should order. It is helpful if, in your 
summary, you frame the Court's mandate as you would like to 
have it. 

13. Sample briefs and appendices: Upon request, the 
Clerk will lend counsel sample briefs and appendices that com-
ply with the form prescribed for printed or offset briefs and 
appendices. 

14. Checklist available: A copy of the checklist used by 
the Clerk in examining briefs will be forwarded to you with the 
briefing notice. 

BR-7 

Rev. 3/89