Sometimes in the weeks prior to an appellate oral argument, the court will order the parties to be prepared to discuss certain issues or cases. Sometimes this is called a focus letter or a pre-argument order. They are pretty common in the Ninth Circuit.
But a dissent to a pre-argument order is less common. In the wrongful-search case out of Alaska in United States v. Sapalasan, No. 21-30251, 2023 U.S. App. LEXIS 23820 (9th Cir. Sep. 7, 2023), the Ninth Circuit ordered the parties to be prepared to discuss four Alaska cases “as they pertain to Appellant’s argument that under Alaskan law stationhouse inventory searches are only permissible if the suspect is in the process of being incarcerated.”
Seems pretty standard.
But Judge Collins dissented. She says that “in my view, pre-argument orders raising authorities not cited by the parties should only be issued when those overlooked authorities are recent, obviously controlling, or involve a jurisdictional issue.” The most recent case the majority asked counsel to bone up on dates back to 1990. And they don’t seem to be jurisdictional or “obviously controlling.”
Justifying the pre-argument order, Judge Hawkins penned a short concurrence, explaining that panels issue these orders to “alert[] counsel to authority they might have overlooked…as a courtesy to counsel, to avoid disruption in the flow of argument and to reduce the need for post-argument supplemental briefing.”
Whatever the reason, if you are preparing for oral argument do not ignore a focus letter or pre-argument order.
