Memo from Reed to Ifill; Requirements Briefs and Record Excerpts; Appendix to the Briefs; Rules on Fifth Circuit Appeals
Correspondence
October 24, 1989

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Case Files, Chisom Hardbacks. Memo from Reed to Ifill; Requirements Briefs and Record Excerpts; Appendix to the Briefs; Rules on Fifth Circuit Appeals, 1989. 4a4d663d-f211-ef11-9f89-6045bda844fd. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/3152895b-6cf6-4dbf-a0d7-16220e453c76/memo-from-reed-to-ifill-requirements-briefs-and-record-excerpts-appendix-to-the-briefs-rules-on-fifth-circuit-appeals. Accessed April 29, 2025.
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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 ..,...„, ....:-..A.... -", •S-,",C,4ei'-'""it*,'...- •"-..3,1k, -...,......,........,--- -a. ,--"- — ---- i...- 'a, ...-- ,.....-..s., ....O.:::::wic.....1.....:..1...... ',..s...r...s...- .....“ - ' 41, 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