Preparing for an Argument Calendar
One of the most interesting aspects of the job was the opportunity to learn about the Circuit’s case-management procedures.
Once a case is fully briefed, a staff attorney summarily reviews the arguments, prepares an advance sheet about the key issues, and generally assigns the case a numeric “weight” based on its complexity. The court’s calendaring unit then sets the weighted cases for argument dates before three-judge panels, taking care, not to over- or under-distribute work. (Case assignments and judges’ names are released internally, but the parties first learn them Monday of the week before argument.)
After cases are calendared, a four-step process occurs:
- The Clerk’s Office sends the advance sheets for each case to the three judges’ chambers.
- The panel’s presiding judge assigns each case to one “writing judge,” who is the presumptive author of the court’s written disposition.
- Each judge (“writing” or not) internally divides the legal research and writing responsibilities for each case among his or her clerks.
- Clerks read the briefs, examine the record, research the law, and prepare bench memorandums analyzing each case and proposing dispositions.
Not every Ninth Circuit judge handles the last step in the same way. Some judges “share” bench memos for all calendared cases. The “writing” judge and designated clerk prepare one lead bench memo for their assigned case and circulate it to the other judges before argument. (Judge Goodwin, a former journalist, was adept at taking a sharp red pencil to bench memos and challenging clerks to write clearly and concisely.) Although all judges and their clerks independently analyze the case, the shared memo is a starting point.
Other judges don’t share. When they sit on three-judge panels, they neither send nor receive memos from other chambers. Instead, they keep their pre-argument legal analysis in-house.
It is important to note that—unlike the practice in some other courts—bench memos are not shadow opinions. (For example, I can recall multiple instances where panels voted unanimously to reject a memo’s proposed disposition—including my own.)
Tips Born of Experience
As I prepared bench memos, I must have read thousands of pages of briefs and excerpts of record. Here are some tips based on what I saw:
- Keep briefs simple and do not use excessive jargon, acronyms, or legalese. Specialist counsel writing briefs sometimes forget that generalist judges (and their clerks) do not start reading the briefs with expert-level knowledge of the important legal principles. The best approach is to use the introduction to capture their attention and then carefully guide them along.
- The leading case should be mentioned early and often. Sometimes, a party buries its most helpful case—the linchpin of its argument—on page 13 or 15 of its brief. Citing that case in the introduction—or elsewhere on page 1 or 2—captures the court’s attention right from the start.
- Excerpts of record should be consecutively paginated and tabbed. Using tabs to separate different materials in the excerpts of record filed under Ninth Circuit Rule 30-1 makes the record clearer and ensures that key documents are easier to find.
- Post-briefing motions and Rule 28(j) case-update letters should be used judiciously. When post-briefing materials are filed, judges and clerks may have to stop their other work and suddenly redirect their attention to a case they thought was fully prepared months ago. Therefore, don’t cause such interruptions unless the issue is important, and don’t use these motions and letters to raise ancillary issues or attempt to reargue the merits.
While reading the briefs, analyzing the record, and polishing bench memos, law clerks have one endpoint in mind: the “calendar week,” when the assigned panels hear arguments (for the Ninth Circuit, typically in Pasadena, San Francisco, Portland, or Seattle).
Calendar weeks were memorable times: the hush in the courtroom before the judges entered; the rapid give-and-take of arguments; the late-afternoon conversations where my co-clerks and I would speculate about the judges’ conference votes.
Pasadena calendar weeks were also special because they brought the court together, thanks to Judge Dorothy Nelson’s “brown bag” lunches; then-Chief Judge Alex Kozinski’s movie nights; Judge Sandra Ikuta’s wine-and-cheese socials; and the clerks’ happy hours in Old Town.
Calendar weeks outside Pasadena were special, too, because Judge Goodwin allowed his clerks to travel with him.
One trip to Portland stands out. After finishing the arguments, the Judge drove us a few hours southeast to his home in central Oregon and took us on a tour of his family’s pine-tree farm. The sight of Judge Goodwin felling tall pines with a chainsaw less than 24 hours after sitting on the bench typifies his personality.
Memories of the Judge
In fact, despite being on “senior status,” Judge Goodwin is still a very active man. While I would take the elevator to chambers, the then-89-year-old judge would be climbing five flights of courthouse stairs.
Over his long life, Judge Goodwin has done it all: military service in both theaters of World War II; 14 years as a state judge, including nine years on the Oregon Supreme Court; a couple of years as a US District judge; and more than 43 years on the Ninth Circuit, including a three-year tour as chief judge. But in spite of the disparity in our age and experience, he was never aloof. On the contrary, he shared a wealth of stories and experiences with his clerks.
He told us about his memories of driving Justice Sandra Day O’Connor and her husband through central Oregon. He told us about his grandfather’s acquaintance with President William McKinley. And he spoke fondly of his San Gabriel Mountain trail rides with Judge Harry Pregerson.
And Judge Goodwin could bring self-deprecating humor to life. He told us about his practice when visiting the San Francisco courthouse of checking the hall of judges’ portraits (“Just to make sure they didn’t accidentally move my portrait to the dead judges’ wall”). He also described the secret to his longevity and vitality—“I’m just a lucky man who had old grandpas.”
Usually, he would chat with us for a few moments, then say, “Okay, back to billable time,” and head to his office. And to Judge Goodwin, these stories were probably just water-cooler conversation. But I will never forget them. They were perhaps the very best part of my law clerk experience.