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The Federal Rules of Appellate Procedure (FRAP) are generally designed to provide national uniformity in the procedural rules applicable in the 13 circuits across the country. This serves the interests of appellate attorneys (and their clients) who practice in more than one circuit and ensures that the courts of appeals follow a set of rules that have been determined, through analysis and experience, to be comprehensive, consistent, and well suited to the sound administration of the federal appellate system. At the same time, FRAP recognizes that some local variations in procedures are appropriate. This reflects a balance between the objective of national uniformity and the recognition that circumstances may vary in important respects from circuit to circuit. See, e.g., FRAP 25(a)(2)(D), (a)(4) & (c)(2), 30(c)(1) & (f), 32(e), 34(a)(1). A recent example of these competing considerations is the new Rule 32.1 on citation to unpublished or nonprecedential opinions. Prior to Rule 32.1, each circuit could determine whether its nonprecedential decisions could be cited in briefs to the court, and the circuits varied considerably in their practices. FRAP 32.1 now establishes a uniform national rule that the courts of appeals cannot prohibit or restrict citations to such rulings issued on or after Jan. 1, 2007. Briefing requirements vary from circuit to circuit FRAP establishes the basic requirements for the content and form of appellate briefs. FRAP 28 specifies what a brief “must contain” and the order in which those sections “must” appear. Similarly, FRAP 32 provides the form of briefs that “must” be followed. Despite that directive, Rule 32(e) also states a court of appeals may, by local rule or individual order, “accept documents that do not meet all of the form requirements of this rule.” While local variation is thus permitted, however, the court “must accept documents that comply with the form requirements” of FRAP 32 even though the local provisions are not met. See also FRAP 25(a)(4) (“[t]he clerk may not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice”). FRAP 28, unlike FRAP 32, does not expressly provide a safe harbor requiring that briefs conforming to the federal rules be accepted for filing even though they do not comply with the local rules. Thus, in order to submit proper briefs, appellate counsel must observe the briefing requirements of both the federal rules and the local rules of the particular circuit. All of the circuits have adopted local rules that alter the content or order of briefs set out in FRAP 28. These local rules do not contradict the requirements of FRAP and therefore are not inconsistent with the federal rules. Rather, they supplement FRAP by prescribing either additional items not mentioned at all in the federal rules or more detailed information in sections already required by the federal rules. Fortunately, the Federal Judicial Center has performed an invaluable service for the bar by compiling a complete circuit-by-circuit list of the local variations in briefing requirements. This compendium is a treasure trove of information for practicing lawyers. The number of additional briefing requirements that have no counterpart in FRAP varies widely by circuit. The 11th and D.C. U.S. circuit courts of appeals have the most, imposing 10 additional requirements; the 3d, 5th and 8th circuits are in the middle with seven; and the 7th Circuit has only one. Report at 4. Furthermore, the report advises counsel to consult not only the circuit rules themselves but also secondary sources, usually found on the court’s Web site, such as internal operating procedures, practitioners’ handbooks, and checklists. Id. The largest category of local requirements, adopted by eight circuits, consists of items from the proceeding below that are to be included in either the brief or an addendum. Examples are the order being appealed from, other rulings or decisions, and supporting documentation. Among these eight circuits, the specific material or information requested varies widely. Report at 5, 7. As permitted by FRAP 34(a)(1), five circuits also require, and three make optional, a statement regarding whether oral argument should be heard. This generally requires a statement of reasons why oral argument is warranted and can include such additional information as the amount of time requested and the dates counsel would be available. Report at 6, 7-8. Notwithstanding the standards set in FRAP 34(a)(2), every circuit seemingly has a different practice regarding when it will hear oral argument. In the year ending March 31, 2006, the courts of appeals overall held oral argument in approximately 27% of the cases terminated on the merits; the D.C. Circuit heard argument in the largest percentage of appeals (48%), and the Fourth and 11th circuits the lowest (12%). See Administrative Office of the United States Courts, Federal Judicial Caseload Statistics, Table B-1 (2006). A statement of related cases also is required in five circuits. This can include prior as well as currently pending cases related to the appeal. Report at 6, 8. Finally, in seven circuits, there are a variety of rules that are unique to a given court. Report at 6, 8-9. For example, the D.C. Circuit requires a glossary of abbreviations and acronyms. This originated from the court’s large docket of administrative-law cases and the resulting alphabet soup of jargon and shorthand. By requiring a complete glossary at the beginning, the judges do not have to go back to search through the brief to find the first time an unfamiliar abbreviation is used and defined. Furthermore, in the Federal Circuit, the patent at issue may, at the party’s option, be included in an addendum to the brief. The 1st Circuit requires that any jury instructions at issue in the appeal be included in an addendum. And in criminal cases in the 9th Circuit, the opening brief must state the defendant’s bail status and projected release date if in custody. The preceding discussion relates to local rules that impose content requirements not contained in FRAP 28. In addition, a variety of local rules require further details or other alterations in briefs that augment the requirements of Rule 28. Five courts modify the order for the contents of the brief. Report at 9, 10. This accommodates the additional briefing requirements adopted in these circuits. For example, while FRAP 28(a)(1) requires a corporate disclosure statement, four circuits go beyond that rule to require the disclosure of additional information. These local rules for broader disclosure often take the form of a required certificate of interest and extend to all interested parties and even amici. Report at 9, 11. Four circuits also require that the jurisdictional statement under FRAP 28(a)(4) contain additional information not specified in the federal rule. The D.C. Circuit requires that the brief contain a separate statement indicating whether the basis of jurisdiction is in dispute, and the 7th and 9th circuits require extensive and detailed information, to be listed in a prescribed order, concerning the jurisdiction of both the district court and the court of appeals. Report at 9-10, 11-12. Similarly, four circuits have expanded the requirements in FRAP 28(a)(5) for the statement of the issues presented for review. The 3d, 8th, 9th and 10th circuits require a citation to the record where each issue was preserved for appeal. In the 8th Circuit, the statement of issues must include a list of the most apposite cases and constitutional and statutory provisions. Report at 10, 12. Counsel must follow both FRAP and the local rules A number of circuits have adopted a variety of other local rules as well. For instance, in the D.C. and 11th circuits, the table of authorities must designate with asterisks the principal authorities relied upon. In the 3d Circuit, the argument section must include citations to any binding opposing authority. The 3d Circuit also requires that citations to authorities in the argument section must conform to a special citation form. The 5th Circuit specifies that the summary of argument must be between two and five pages, while the 8th Circuit directs that the first section of the brief must be a one-page summary of the case. Report at 10, 13. And the D.C. Circuit recently added a required section on standing in cases involving direct review of administrative actions. See D.C. Cir. Rule 28(a)(7). These are only some of the local variations in the circuits. Appellate counsel must inform themselves of these requirements in order to fulfill their obligations to their client and to the court. From time to time, the courts of appeals should undertake a review of their local rules. Some rules previously adopted might no longer be justified, and their elimination would further the goal of national uniformity. In addition, courts might decide to adopt a rule promulgated by a sister circuit as a “best practice” for appellate litigation. Finally, courts need to ensure that local variations are clearly identified for counsel and readily accessible on their Web site. The circuits, in conjunction with the Advisory Committee for the Federal Rules of Appellate Procedure, currently are in the process of such a review. This effort will well serve the appellate bar and bench. Mark I. Levy is the chairman of the Supreme Court and appellate advocacy practice in the Washington office of Kilpatrick Stockton. He serves as a member of the Advisory Committee on the Federal Rules of Appellate Practice.

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