Against the DEA, lawyers mount vastly different defenses

Posted on December 1, 2015 by - Appellate, DEA Prosecutions

Part of my work requires that I review trial court records in order to prepare and file briefs on appeal. Consequently, I see the complete record, from beginning to end, prepared by different lawyers. One practice area that keeps me on my toes is defending physicians, pharmacists, and prescribing nurses from prescription drug charges by the DEA. Lawyers defending such cases can take vastly different approaches to their work. Some do a great deal of work to prepare, and do that work well in advance of trial. Others, not so much, saving preparations until close to trial, which can be unnerving to physicians, pharmacists and prescribing nurses, demanding professionals in their own right.

DEA lawyers present uniform prosecutions across the country

My experience includes directly defending or assisting physicians, pharmacists, and prescribing nurses in cases arising out of the Third, Fourth, Seventh, and Ninth Circuits and 13 states, including Indiana, South Carolina, Arizona, Oregon, Virginia, Georgia, Pennsylvania, Florida, Hawaii, Texas, Connecticut, California and Michigan. With this broad experience, I have seen first hand that the DEA lawyers take a similar if not uniform approach across the country when investigating and prosecuting physicians, pharmacists, and prescribing nurses, which should come as no surprise, since the DEA’s work is driven from the top down. I have also seen first hand that defense attorneys are far less uniform in their approach to their work, and the quality of each defense is dependent upon the individual firm and lawyer(s) responsible for preparing and delivering defense.

Working against the DEA, lawyer’s experience reveals common mistake

As a part of the work summarized above, I represented the physician and pharmacist before the United States Supreme Court in the case of Gonzales v. Oregon, 546 U.S. 243, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). I am also the lawyer that obtained the release from prison of doctors David and Randall Chube, on appeal to Seventh Circuit Court of Appeals, in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). Both these cases are discussed in detail elsewhere on this website, and that effort will not be repeated here, except one point bears repeating: If a case is not well-defended, the DEA will criminalize some aspects of the practice of medicine by confusing the civil standard of care with the criminal conviction standard. Don’t let this happen to you.

An adequate defense can be complicated and expensive

Drug diversion cases (i.e., prescribing or dispensing “without a legitimate medical purpose”) are complicated cases to defend, with each case presenting the intersection between law, medicine and, sometimes, politics, with the occasional involvement of the media. When mounting an adequate defense against the DEA, lawyers face divergent tasks, and it is difficult for one lawyer to do it all. This is not an uncommon problem in litigation generally. When I was a younger attorney, recruiting lawyers to help defend physicians in a small southern medical clinic, one senior attorney commented to me that “if we had four lawyers and $100,000 we could do something with this case,” and his comment is often spot on. The point I would stress to any physician, pharmacist, or prescribing nurse defending against prescription drug charges, is to ensure that your defense team is complete, and that your defense is prepared well in advance of trial.

Settling your case on appeal

Posted on November 23, 2015 by - Appellate

Is it possible to settle a case on appeal, after losing at trial?

Yes, it is sometimes possible to settle a civil case on appeal, even after losing the case at trial. If you have a one or more meritorious issues to claim as error on appeal, and there is still time to file your Notice of Appeal, your case may have significant settlement value. If you are uncertain about appealing, have an experienced appellate lawyer evaluate your potential appeal, both for its merit and its settlement value. And do not delay – the time allowed to file a Notice of Appeal is often short.

Do the legal issues matter?

Yes, the legal issues do matter. Some cases, for example, are simply not capable of settlement, take for example cases involving larger legal or political issues that reach beyond the parties, or child custody disputes, or any case where the parties are too closely or too emotionally involved. These cases can be very difficult, if not impossible, to settle. On the other hand, many business or transactional disputes are quite capable settlement, particularly if the parties are business-minded or pragmatic. The best chance of settling an appeal occurs when there is one or more meritorious issues on appeals, both parties are pragmatic, and both parties want out of the litigation.

How best to proceed – a few practice tips:

The initial assessment is important. An experienced appellate lawyer, one that is also experienced with settlements, will be necessary to evaluate both your chances of success on appeal and the likelihood of an appellate settlement. In some cases, an experienced appellate lawyer can recommend when to stand firm, or when to settle. In other cases – the close-call cases – an experienced appellate lawyer can make recommendations in the alternative, enumerating the pros and cons for each recommendation, enabling you to make the best decision in your unique circumstance. In the worst of cases, an experienced appellate lawyer will know when you have little chance of success on appeal, and will tell you as much, i.e., that anything gained through settlement will be more than will be gained by taking up the appeal. An experienced appellate lawyer can guide you through this process.

Avoid spending too much time on the merits of an appeal. A discussion with the other side about the merits of an appeal can be helpful at the start, but these discussions can quickly become counter-productive. When settlements occur it usually because the parties were able to temporarily set aside the legal fight and focus on the pragmatic benefits of a settlement for both sides. A experienced appellate lawyer, one skilled at both appeals and settlements, can guide you through the analysis and the negotiations.

Avoid trying to settle your own case. The parties to litigation can rarely settle an appeal on their own, usually because the parties are too closely involved. Experienced trial lawyers that remain objective throughout the litigation can be well suited to negotiate settlement, but sometime they are also too closely involved. In almost all cases, the addition of an appellate lawyer to the team, an appellate lawyer that is also experienced with settlements, is most helpful. In a future post, I will write about the appellate settlement program.

 

Criminalizing medicine

Posted on November 14, 2015 by - Appellate, DEA Prosecutions

Are some physicians being convicted and sentenced for “legal” prescriptions?

I say “yes,” and I have first hand experience defending physicians on appeal from such convictions and sentences. Perhaps the best example I have to offer is the case involving Drs. David and Randall Chube, two Gary, Indiana, physicians that I represented on appeal to Seventh Circuit Court of Appeals. See US v. Chube II, 538 F3d 693 (7th Cir. 2008).

DEA attorneys confuse the legitimate medical purpose rule

The problem occurs when the criminal conviction standard and civil standard of care – two very distinct legal standards – are confused, substituted, and/or conflated by DEA investigators, DEA attorneys, federal prosecutors, the government’s expert witnesses, and the PSR writers. In my opinion, this legal error – i.e., criminalizing medicine – occurs too often, during key phases the criminal proceeding, which include the:

  • DEA investigation (leading to more counts in the indictment);
  • Federal prosecution (leading to more convictions at trial); and
  • Federal sentencing (leading to longer prison sentences).

In my experience, this legal error occurs when the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a “legitimate medical purpose,” a subject that is discussed in more detail on the criminal violations page of this website, and numerous other pages as well.

Medical malpractice is neither criminal conduct nor relevant conduct

This point is key: A violation of the civil standard of care (usually called malpractice, or professional negligence) is, without more, not enough to prove a prescription drug crime, or the “relevant conduct” necessary to lengthen a prison sentence. The reason is simply. Malpractice alone, even when prescribing controlled substances, is not a crime, and malpractice alone is not enough to support a criminal conviction, or a finding of relevant conduct necessary to lengthen a prison sentence. Unfortunately for physicians, however, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered toward the malpractice standard, making multiple criminal convictions easier to win, and the relevant conduct necessary to lengthen a prison sentence, easier to find. Protect yourself – do not let this happen to you.

The legitimate medical purpose standard as applied in case of U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

At the time of sentencing in the Chubes’ case, the federal prosecutor and the PSR writer seemingly counted every prescription written by the Chubes as “relevant conduct,” without first reviewing each prescription to determine whether “drug diversion” – which is the crime – had in fact occurred. Drug diversion includes unlawful prescribing, unlawful dispensing, or drug dealing, i.e,. it is criminal conduct. Under the federal sentencing guidelines, relevant conduct, which is essentially other criminal conduct, is applied at the time of sentencing to increase the length of a prison sentence. In the Chubes’ case, Dr. Randall Chube’s sentence was increased to five years and Dr. David Chube’s sentence was increased to fifteen years. In the Chubes’ case, however, it wasn’t relevant conduct because it wasn’t criminal conduct. Another way to look at it is that the DEA “criminalized” medical error. Criminalization occurs when there is an unchecked expansion of the law by over-aggressive law enforcement.

On appeal, the Seventh Circuit Court of Appeals vacated both doctors’ prison sentences and “remanded” the case back down to the District Court for re-sentencing. The Seventh Court of Appeals explained that the District Court relied upon insufficient evidence to prove that the relevant conduct was in fact criminal conduct. See US v. Chube II, 538 F3d 693 (7th Cir. 2008). Shortly thereafter, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences once relevant conduct was correctly understood and applied.

How to shave months off the time it takes to conclude an appeal – Part II

Posted on October 2, 2015 by - Appellate

In my last post, I discussed the opportunities that will allow the smart appellate litigator to shave months off the time necessary to conclude a basic appeal, from start to finish, in the Oregon Court of Appeals. In this post, I discuss a few more time-consuming events that are less common, but may still be anticipated as part of a larger, time-saving strategy, as follows:

Consolidation of two appeals

Occasionally, the litigants may be litigating two cases, having similar issues, that are going up on appeal separately. Or, there may be an appeal from a Limited Judgment entered before trial, and then a second appeal from the General Judgment entered after trial. In either case, it is often desirable for reasons of “judicial economy,” to consolidate the appeals, to save time.

Sometimes, when two appeals are consolidated, they are simply assigned the same briefing schedule and oral argument schedule. In other words, the two appeals “travel together.” Other times, the two appeals are in fact consolidated into one appeal, sharing common briefing, and creating an appellant and cross-appellant situation. Either way, the consolidation of two appeals requires the filing of a motion (which requires experienced legal judgment), and an order by the Court of Appeals.

One way to save more time is to file a joint motion to consolidate (i.e., a motion by both parties, without objection from any party). While it may take time to negotiate the terms of the joint motion, a joint motion eliminates any dispute between the parties that would requiring resolution by the Court of Appeals, thus saving time-to-ruling, although a joint motion may still be denied.

Another way to save still time, is to file the joint motion to consolidate early, while preparation of the transcript and/or opening brief is underway. This approach means that the time consumed by the Court of Appeals to decide the motion will run concurrently with other necessary work, so the motion does not require any additional time. Conversely, if you really want to slow things down, wait until all the work is done before filing the motion to consolidate. The motion may still be granted, but now everybody is waiting for the motion to be decided by the Court of Appeals, before the next step may be taken, for example, scheduling oral argument.

Correcting the trial court record

Throughout the course of litigation, each party maintains a copy of the trial court’s file and, on appeal, each party relies upon their file to get their work done, rarely knowing or suspecting that the trial court’s file – which is the all important record on appeal – is incomplete. If the trial court’s file is incomplete, the record on appeal is incomplete. If this problem is present, it is usually not discovered until very late in the process, and the time necessary to correct the trial court’s file may take a month or two, or even longer, if the parties dispute what is necessary or permissible to correct the trial court’s file. Although an incomplete trial court file is an uncommon occurrence, if you would rather be safe than sorry, this potential delay can be avoided by taking a trip to the courthouse early on, to inspect the trial court’s file. This way, any necessary corrections can be made early on, concurrent with other work, saving much time later on.

Conclusion

As you can see from the above discussion, it is possible to anticipate even the unusual events that may delay an appeal by several months, and to eliminate those occurrences before the delay is unavoidable. It is not always easy to do, however, and expediting an appeal may be counter intuitive. We have all become accustomed to waiting for deadlines, and following the prescribed or expected path. Your appeals lawyer will need to be both experienced and proactive, but in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

How to shave months off the time it takes to conclude an appeal – Part I

Posted on September 30, 2015 by - Appellate

In a prior post, I discussed the time it takes, from start to finish, to conclude an appeal, and it can be a lengthy process. Today I will discuss the many opportunities a skilled appeals lawyer may seize to expedite an appeal, saving a client much time and therefore some expense.

For the purpose of this discussion, I will assume the role the appellant taking an appeal to the Oregon Court of Appeals. I do this for two reasons. First, the Oregon Court of Appeals is the busiest appellate court in Oregon and, second, the appellant is responsible for most of the work on appeal, and is therefore afforded the greatest number of opportunities to expedite the appeal. Some of the same opportunities will apply equally well, however, to the respondent on appeal.

The opportunities to expedite an appeal in the Oregon Court of Appeals, are as follows:

Entry of the judgment

This first opportunity to save time presents itself before the appeal is even filed. Although there are exceptions (not discussed here), most appeals are taken from a “judgment,” after it is “entered” in the registry. It is surprising, however, how long the parties and the trial court might take to prepare, negotiate, litigate, sign, file, and enter the judgment. In some cases, by nudging this process along, months can be saved by having the judgment prepared, signed, filed, and entered promptly, so that you can file your notice of appeal quickly after your loss in the trial court.

Filing the appeal

An appellant is allowed sufficient time, often 30 days (but not always), to prepare and file a notice of appeal, but there is no requirement to wait that long. By filing the notice of appeal early, you trigger the next event, and can easily shave three weeks off the time it takes to eventually conclude the appeal.

Preparation and filing of the trial court’s transcript of proceedings

After the notice of appeal is filed, the Court of Appeals will assign a court-approved transcriptionist, to convert the audio recording into a transcript of the trial court proceedings. Once the transcriptionist is notified by the Court of Appeals that he or she has been assigned the work, the transcriptionist will then contact the lawyer for the appellant, to provide an estimate of the cost, and to request pre-payment. At the same time, the transcriptionist will add this new assignment to his or her backlog of work, usually in the order received. If the transcriptionist needs more time, the transcriptionist can file his or her own motion in the Court of Appeals seeking an extension of time, and such motions are routinely granted by the Court. As you might guess, it may take several months or longer before the transcript is prepared and filed, especially if nobody is paying attention.

It is not necessary, however, to accept as fate this slow process. If your circumstances require otherwise, months can be saved by having the transcript prepared as soon as you know you will be appealing. Just be sure that you choose a court-certified transcriptionist and that you include his or her name in your notice of appeal, and further explain in your notice of appeal that the transcribing work is done, or already underway. This way, the Transcript Coordinator will know to assign the work to the transcriptionist you have already hired. In those cases where I want to save even more time, I will call a list of court-certified transcriptionists that I maintain in my office, to determine which transcriptionist is most available, and how soon he or she can get the work done.

Correction of the transcript

After the transcript is served and filed, there is a short period of time (14 days) to file a motion in the trial court to correct any errors in the transcript, and there are always errors in a transcript. Most of the time, however, the errors are insignificant. It is my practice never to file a motion to correct a transcript merely to fix typographical errors, misspellings, or other insignificant errors, if I can simply correct the error on appeal but using editorial insertions or references to other evidence, unless the typographical error, misspelling, or other thing goes to the heart of something that is important or dispositive on appeal.

If there is a risk of confusion on a key issue, or the error changes and important fact that you need on appeal, by all means, file the motion to correct the transcript. But remember, although the 14 day period to correct a transcript is short, the motion you file in the trial court may take a month, or several months, to resolve, before your appeal is back on track.

By avoiding an unnecessary motion to correct a transcript, you will save a month or more, not to mention the expense of the work. And remember, you cannot file your opening brief on appeal until the transcript is filed and “settled.” Settling the transcript requires the expiration of the 14 period to correct the transcript or, if a motion to correct has been filed, the entry of an order by the trial court correcting the transcript.

Preparation and filing of the opening brief on appeal

Although you are allowed 49 days from the settling of the transcript to file your opening brief, there is no requirement that you wait 49 days to file your opening brief. If you have followed my recommendations above, you will have obtained the transcript early, which means you can prepare your opening brief early too, and then file it soon (within days) after the transcript has settled. Once the opening brief is filed, the next deadline is triggered, for the other side to file its answering brief.

Preparation and filing of the reply brief on appeal

In many appeals, the appellant is permitted to file a reply brief. Other times, a reply brief may be optional, by leave (permission) of the Court of Appeals. Obviously, you cannot prepare the reply brief until you have the answering brief in hand, but if you know the answering brief is coming, you can reserve time on your calendar to do the work immediately, in order to get the reply brief filed early too. By planning ahead, you can save a month or longer in getting the reply brief filed.

Conclusion

The work itemized above is necessary for a basic appeal in the Oregon Court of Appeals. As you can see from the above discussion, it is possible to shave significant time off an appeal. It is not always easy to do, however. Your appeals lawyer will need to be both experienced and proactive. Expediting an appeal may be counter intuitive, as we have all become accustomed to waiting for deadlines, and following the prescribed or expected path. But in the right case, expediting an appeal can be highly desirable, and it will almost always save money under the theory that the longer litigation lasts, the more it will cost.

In a future post, I will discuss other time consuming events that may, but do not always, present themselves on appeal. By anticipating these additional time consuming events, still more time may be shaved off the time it takes to conclude an appeal, from start to finish.

I want to appeal – How long will it take?

Posted on September 21, 2015 by - Appellate

Good question. Appeals are a slow process, with flurries of activity followed by periods of inactivity.

The typical progression of an appeal in the Oregon Court of Appeals

If you are the appellant taking an appeal to the Oregon Court of Appeals, the flurries of activity include the following:

  • preparation and filing of the notice of appeal
  • preparation and filing of a cost bond (or cash deposit) into the trial court
  • preparation and filing of a supersedeas bond, or “stay bond,” to stop execution of the trial court’s judgment
  • preparation and filing of the trial court’s transcript of proceedings
  • correction of the transcript, if necessary
  • preparation and filing of the opening brief on appeal
  • preparation and filing of the reply brief on appeal
  • preparation and attendance at oral argument.

The work itemized above is necessary for basic appeals, and it will take about a year for both parties complete all that is to be done.

Occasionally, other work may be necessary. For example, there may be a cross-appeal, requiring another round of briefing. Or there may be two appeals, that the parties will want to consolidate, by filing a motion to consolidate, and then waiting for a ruling from the Court of Appeals. Or it may be discovered that the trial court is missing part of the record, making it necessary for the Court of Appeals to “remand” (return) the case to trial court so that the parties and the trial court may correct the record. Or there may be a jurisdictional issue that will interrupt the flow of work while parties brief the issue and the Court of Appeals decides the issue. Or it may be necessary to file part of the record under seal, in order to protect the privacy of minors or patients. All of this will take additional time. One of these issues may take two-to-three months to resolve. If two or more of these issues are present, an appeal may take an additional six months to conclude. In the end, an appeal having moderate complexity may consume 1-1/2 years before the briefing is complete and the case is waiting to be argued to the Court of Appeals.

How long to oral argument?

After so much work, the next question often asked is, how long before oral argument? I checked my last three cases and found that oral argument was heard, on average, six months after the briefing was complete. One case took five months from the completion of the briefing to oral argument, the second case took nine months, and the third case took four months. The delay in getting to oral argument is a function of the Court of Appeals’ backlog of cases. As you can see, an appeal having moderate complexity may consume 1-1/2 years to complete the briefing, and take another six months to get to oral argument, two years total.

How long before the Court of Appeals decides my appeal?

The next question is often, how long before the Court of Appeals will decide my case? The answer may surprise you. If you are the appellant, you do not want a quick decision, because cases on appeal can be lost quickly – in one to two months – while winning takes time. If you are the appellant, winning takes time because the Court of Appeals must write and publish a decision reversing the lower trial court, a time-consuming process. For this reason, when I represent the appellant, I am always pleased when two or more months have passed and nothing is heard from the Court of Appeals. I am even more pleased when the Court of Appeals’ decision has been pending four months or longer. The court may still deny your appeal, but at least the time-to-decision suggests that the denial was not easily decided. In my experience, the longer the Court of Appeals takes to reach a decision, the better the odds of a favorable result.

How long overall?

As you can now see, appeals are a slow process, comprised of flurries of activity followed by periods of inactivity. The numerous periods of activity are spent waiting on the other side, or waiting on the Court. A basic appeal might take 1-1/2 years from start to finish, before the case is argued and decided, while a more complicated appeal, requiring “motion practice” to resolve one or more issues, may take 2-1/2 years from start to finish, before the case is argued and decided.

In my next post, I will discuss the several opportunities a lawyer can exploit to expedite an appeal, saving much time, and some expense.

 

Relevant conduct under the federal sentencing guidelines is criminal conduct

Posted on September 12, 2015 by - Appellate, DEA Prosecutions

U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

I was the appellate lawyer lawyer for Drs. David and Randall Chube on appeal to the Seventh Circuit Court of Appeals in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). At the time of sentencing in that case, both the DEA attorney (the federal prosecutor) and the “PSR writer” (the author of the Pre-sentence Investigation Report) seemingly counted every prescription for controlled substances, whether it was criminal or not, as relevant conduct when applying the federal sentencing guidelines, and the District Court (trial court) sentenced accordingly, which greatly increased the length of sentence for each physician – five years for Dr. Randall Chube, and fifteen years for Dr. David Chube.

On appeal, the Seventh Circuit Court of Appeals found that the District Court relied upon insufficient evidence to prove the relevant conduct was criminal conduct. Both physicians sentences were vacated and the case was remanded back down to the District Court for re-sentencing. A short while later, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences when relevant conduct was determined correctly. That was seven years ago.

Not much has changed

I was recently retained to assist defense counsel with the sentencing of a physician in a state located within the Fifth Circuit Court of Appeals, and it seems not much has changed. Like in the Chube case, both the DEA attorney and the PSR writer make the mistake of seemingly counting every prescription for a controlled substance as relevant conduct, without first establishing that the relevant conduct was criminal conduct, when applying the sentencing guidelines. If the District Court adopts these computations by the PSR writer and the DEA attorney at the time of sentencing, the District Court will commit reversible legal error just as the District Court did in US v. Chube II, 538 F3d 693 (7th Cir. 2008).

Prescribing without a legitimate medical purpose

The civil standard of care and the criminal conviction standard are two distinct legal standards, yet these two legal standards are often substituted, confused, and/or conflated, by the DEA’s drug diversion investigators, the DEA’s attorneys, the federal prosecutors, the prosecution’s medical experts, and the PSR writer, during the investigation, the trial and at sentencing. Most often, the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a legitimate medical purpose, discussed on the criminal violations page and elsewhere on this website. Unfortunately for physicians, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered, making numerous criminal convictions easier to win, and the relevant conduct necessary to further lengthen a sentence, easier to find. The burden is upon defense counsel and the courts to keep these two distinct legal standards separate.

Never forget that relevant conduct is criminal conduct

A violation of the civil standard of care (which may amount to professional negligence or medical malpractice) is not, without more, a drug crime. In other words, a physician may commit malpractice when prescribing controlled substances, but that does not mean the physician committed a crime. Never forget that relevant conduct is criminal conduct. Because a violation of the civil standard of care when writing a prescription for a controlled substance is not, without more, criminal conduct, it is not properly considered relevant conduct for purposes of sentencing. More is required. See U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008). By using an incorrect legal standard to determine which prescriptions are criminal, and therefore relevant conduct when applying the federal sentencing guidelines, a District Court will commit reversible legal error at the time of sentencing. It is incumbent upon defense counsel to preserve this legal error for appeal.

 

Eleven recommendations for oral argument

Posted on July 16, 2015 by - Appellate

A trial lawyer I assisted with an appeal wanted to argue his case to the Oregon Court of Appeals and asked me for whatever advice I might provide to him.  What follows is my answer – eleven recommendations for oral argument – intended for his use, in that case, that day, before the Oregon Court of Appeals.  This list is not intended to the best list, or the most comprehensive list, or to apply to every appellate court.  It is simply the advice I gave one trial lawyer on how to argue an appeal to the Oregon Court of Appeals. Here it is:

  1. Read Chapter 6 of the Oregon Rules of Appellate Procedure generally, paying close attention to Rule 6.15 specifically (Procedure at Oral Argument).
  2. Know your panel.  The judges sitting for the Oregon Court of Appeals are organized into panels, or “departments.”  Check the argument calendar to learn the make up of the three judge panel that will hear your case.  Determine whether any of the judges on your panel wrote or participated in one for the opinions upon which you rely?  If so, study that opinion with the specific judge(s) in mind.
  3. Be timely.  Arrive at the start of each session, and know what to expect.  Check the argument calendar the day before argument, to verify when your case will be called.  Caveat: Even if you are the last argument of the morning or afternoon session, show up on time for the first argument of the session.  Some cases are dismissed, some arguments are waived, and if one party is late, the court may take cases out of order.  This is why the court expects everyone to be present at the start of the morning or afternoon session.
  4. Check in with the clerk.  When you arrive at the courtroom, check in with the clerk (seated to the left as you enter the courtroom) by handing the clerk your business card and advising him or her which party you represent.  The clerk will note your arrival and usually hand your card back.  If you are permitted to make a reply argument, reserve reply time with the clerk at the same time you check in. See Rule 6.15.  It is my practice to reserve the maximum reply time allowed, because it is during the reply argument that I get to the answer the bulk of the court’s questions, plus whatever argument the respondent just made. Take a seat anywhere in the back, until your case is called, and then move up to counsel.
  5. Introduce yourself to the court properly.  Because you are the appellant, you will argue first, and last, if you reserve time to reply.  See Rule 6.15.  Introduce yourself to the court first, by saying, “May it please the court, my name is so-and-so, appearing on behalf of . . . .”  Do not tell a joke, and do not be folksy; it never works.  Never read anything unless it is a highly specific quote from the record or a legal authority.  If you read too much, the court will interrupt you, and it happens very quickly.  When your time is up, quickly wrap up your argument and sit down.
  6. Remember, questions are a good thing.  Questions from the bench are a good thing because whatever the court questions you about is what interests or troubles the court.  I therefore believe the sooner a question comes, the better.  And if there are few questions, or heaven forbid, no questions, it is because one side has already won or lost the case.  When this happens, hopefully it is not a surprise, but it will not happen to you in this case.  Don’t worry.
  7. Answer questions straight up. Appellate judges are focused on threshold questions that may dispose of a case quickly.  You are not going to trick the court.  Answer any question directly, and then explain the answer, but never go outside the record.  If necessary, tell the court you could answer the question but it will be necessary to go outside the record to do so.  The court will say, “thank you, no.”
  8. What to do if you do not know the answer.  Occasionally the court will ask a question not anticipated by the parties in the briefing.  If you don’t know the answer, say so, and offer to provide the court with a short, two-page supplemental memorandum, if it seems appropriate to do so.  The court rarely accepts such offers.
  9. Concede points that are difficult but not necessary to your position, but don’t concede points that concede your case.  Sometimes a judge will say something like, “If we find so-and-so, you lose, right?”  The answer must be either, “Yes, but the court shouldn’t find so-and-so because . . . ,” or, “No, your honor, if you find so-and-so, we still win because . . . .”
  10. If it is your first time to the court of appeals, observe one or two arguments before your argument, even if you have to attend another day to do so.  Although I have attended many oral arguments, I still prefer to be second on the argument calendar so that I may observe one argument to get “the tempo” of the panel that day.
  11. Parking. There is usually plenty of adequate parking right outside the main doors to the Supreme Court building and, as of November 2015, the coin-fed parking meetings have been replaced. You no longer need to bring a stash of quarters – you can now pay by debit or credit card!

An old story finally told: How one party made one argument that won a reversal in the Ninth Circuit Court of Appeals

Posted on June 29, 2015 by - Appellate

The Oregon Death with Dignity Act was passed by Oregon voters in November of 1994. Oregon’s novel law did not, however, take effect that year, but was instead immediately enjoined from operation by a federal District Court. Lee v. State, 869 F Supp 1491 (D. Or. 1994). I represented the sponsors of Oregon’s groundbreaking new law on appeal, and we won. In 1997 the Ninth Circuit Court of Appeals reversed the federal District Court and vacated its injunction, Lee v. State of Oregon, 107 F3d 1382 (9th Cir. 1997), allowing the Oregon Death with Dignity Act to go into effect, the first law of its kind.

Three parties appealed the federal District Court’s injunction

Three separate parties appealed the federal District Court’s injunction to the Ninth Circuit Court of Appeals. The three parties were:

  • the State of Oregon (defending the state’s new law);
  • a dying patient represented by American Civil Liberties Union (the ACLU); and
  • the public sponsors of the law (my clients).

Some might wonder why three parties appealed, and weren’t they all doing the same thing?

One party made the difference

At first glance, it would appear that all three parties – the State, the ACLU, and the law’s sponsors – were all doing the same thing. They were, after all, litigating in support of Oregon’s new law. What you may be surprised to learn is that on the key legal issue that won the appeal, the three appellants took very different legal positions.

The key legal issue that persuaded the Ninth Circuit Court of Appeals was “standing.” Standing is a concept rooted in Article III of the federal Constitution. To establish standing, the legal challengers of the Oregon Death with Dignity Act must have established that they suffered sufficient harm or injury to themselves. Mere hypothetical harm would not be enough to confer standing upon the plaintiffs. If the plaintiffs did not have standing, the federal courts would not have jurisdiction (power) to decide the case, and the plaintiffs’ case must be dismissed.

In this case, the State of Oregon decided not to argue that the plaintiffs lacked standing. The State explained that for reasons of judicial economy, it would prefer that the federal courts reach (decide) the legal merits of the case, rather than simply dismiss the case on a procedural basis. The State did not want to come back another day to litigate the same issues against new plaintiffs that may have standing.

Similarly, the ACLU decided not argue that the plaintiffs lacked standing because the ACLU works steadily to expand, not restrict, the application of standing. The ACLU prefers easy access to the federal courts in order to bring their many legal challenges, and standing is a barrier to easy access.

This left only us, the sponsors of the law, to argue that the plaintiffs lacked standing to litigate. Our goal was to win. We did not have other priorities. Standing became our key argument.

As history will tell, the Ninth Circuit Court of Appeals reversed the federal District Court on this ground alone, and, in the 17 years since, no federal court has ever reached the merits of the plaintiffs’ nonexistent, hypothetical injuries.

From a Constitutional perspective, the standing doctrine served its intended purpose by screening from the federal courts purely hypothetical claims of injury. Best of all, however, the standing doctrine provided us with the key legal argument to win a reversal and free the Oregon Death with Dignity Act from the federal District Court’s injunction.

The lesson: Seemingly like-minded appellants may have different legal interests

Although I could provide you with other examples from other appeals, this example makes the all important point that seemingly like-minded appellants may have different legal interests and priorities that will influence, if not interfere with, important litigation decisions and tactics. With this example in mind, if you have a stake in a high profile piece of litigation, do not assume that seemingly like-minded litigants are necessarily implementing the best litigation decisions and tactics.