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Chief Judge Mary Murguia

Perfecting Your Appeal

A simple guide to the

proper and timely preparation of your appeal

December 2009

In an effort to improve the quality of appellate advocacy, the Ninth Circuit has produced a 28-minute practice guide video. Separate versions oriented toward criminal and civil appeals are available. The guide is a valuable aid for both experienced and novice advocates, and is available as a free digital download at www.ca9.uscourts.gov under FAQs, Forms and Instructions -> Guides and Legal Outlines. Copies are also available for viewing at all circuit library locations.

The guide, collaboratively developed by members of the Ninth Circuit bench, seasoned practitioners and court staff, traces a hypothetical case from filing to disposition. Viewing the video may be applied to the continuing legal education requirements for California, Montana, Nevada, Oregon and Washington.

Please note that these videos were created prior to the Court's use of the Appellate ECF (Electronic Case Files) system, which allows documents to be filed electronically. Some of the references in the videos to filing documents by mail or in person are therefore outdated. Electronic filing of documents is now mandatory for all attorneys who have not received an exemption. Please refer to the Ninth Circuit Rules, especially 9th Cir. R. 25-5, for current filing requirements.

The video covers the following topics:

Initial Considerations

∙ Obtain and Review the Federal Rules of Appellate Procedure and Ninth Circuit Rules

Copies of the Federal Rules of Appellate Procedure (Fed. R. App. P.) and Ninth Circuit Rules (9th Cir. R.) are available on the Court’s website at www.ca9.uscourts.gov under Rules. They are also available upon written request to the Clerk’s Office.

∙ Post-Judgment Motions

Certain timely post-judgment motions render a notice of appeal ineffective. An amended notice must be filed if review of the post-judgment motion’s disposition is desired. See Fed. R. App. P. 4(a)(4).

∙ File Timely Notice of Appeal in District Court

The filing deadlines are set forth at Fed. R. App. P. 4. The deadlines are mandatory and jurisdictional. See Browder v. Dir., Dep’t of Corrections, 434 U.S. 257 (1978).

∙ Mediation Questionnaire

All litigants (except pro se litigants) are generally required by 9th Cir. R. 3-4 and 15-2 to complete a Mediation Questionnaire within 7 days of the docketing of an appeal or a petition for review. The Mediation Questionnaire is used to assess whether a possible settlement of the case could be aided by the court’s settlement program described at Fed. R. App. P. 33 and 9th Cir. R. 33-1. Litigants may also request a conference by contacting the Mediation unit. More information is available on the Court’s website at www.ca9.uscourts.gov/mediation.

∙ Order the Reporter’s Transcripts

The process to designate and order transcripts is described at 9th Cir. R. 10-3. The deadlines for initiating the process are triggered by the filing of the notice of appeal. A transcript designation form may be obtained from the district court. Counsel is obligated under 9th Cir. R. 11-1.2 to notify the court if the reporter fails to produce the transcripts.

Briefing

∙ Filing Dates

Consult your scheduling order and 9th Cir. R. 31-2.2 with regard to due dates and extensions of time. Note that unlike some state courts, there is no rule permitting automatic approval of stipulations or unopposed motions for extensions of time. If the opening brief in a civil case is not filed and no motion for an extension of time has been submitted, the clerk will dismiss the appeal for lack of prosecution without prior warning under 9th Cir. R. 42-1.

∙ Contents/Length/Format

Contents of a brief are set forth at Fed. R. App. P. 28 and 9th Cir. R. 28. Format and length limitations are set forth at Fed. R. App. P. 32.

∙ Stylistic Considerations

Use short sentences and comprehensible language. Avoid legalese. Refer to the parties by name or by terms such as “the taxpayer” or “the employer.” Fed. R. App. P. 28(d).

∙ Record Citations

All references to the record must be supported by an appropriate citation to the excerpts of record pursuant to 9th Cir. R. 28-2.8.

Excerpts of Record

∙ Purpose

The excerpts of record are intended to provide each member of the panel with those portions of the record necessary to reach a decision on the appeal. 9th Cir. R. 30-1.

∙ Required Contents/Format/Length

The contents of the excerpts of record are governed by 9th Cir. R. 17-1.4 and 30-1.4. There are different requirements for civil and criminal appeals and for petitions for review. 9th Cir. R. 17-1.6 and 30-1.6 govern the length and format of the excerpts.

Oral Argument

∙ Generally

Practices regarding calendaring and oral argument are discussed in the introduction to the Ninth Circuit Rules and the Circuit Advisory Note to Rules 34-1 to 34-3.

∙ Notice

If oral argument will be heard, counsel are informed approximately five weeks before the date of the hearing. Once a case has been assigned to the panel that will consider the merits of the case, all filings must include the information listed at 9th Cir. R. 25-4.

∙ Additional Authorities

When additional authorities are discovered after the filing of the brief, the party may advise the court by letter. The letter shall refrain from including any additional argument. Fed. R. App. P. 28(j). If the case has been assigned to a panel for disposition, the letter must include the information listed at 9th Cir. R. 25-4.