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What does it mean when the appellate court orders counsel to discuss certain authorities at oral argument?

What does it mean when the appellate court orders counsel to discuss certain authorities at oral argument?

Tim Kowal     September 15, 2023

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.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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