Monday, June 16, 2014

Notices of Supplemental Authority: Give an Inch, Take a Few Pages!


Longtimers here know how we hate the endless briefing battles engendered by notices of supplemental authority, "responses" thereto, and replies, counterreplies etc.

I admit it can be a fine line -- sometimes it is clearly helpful and not excessive to note briefly how the supplemental authority fits in to your existing legal argument, if it's not self-evident.

And the urge is always there to "respond" to the notice by pointing out how the new case does not apply, or has been misinterpreted.

But in general we try to exercise discretion -- keep it short in the first place, and resist the demons urging you to tee off in response.  And holy hail please forget about a "reply."

In walks Magistrate Judge Goodman, offering some sound clarification:
In the Notice, Plaintiffs reference and attach two post‐March 26, 2014 cases. The Notice, however, doesn’t end there. Rather, Plaintiffs included two additional pages to explain why these two cases are relevant to this case. Defendant moved to strike and respond to the Notice. [ECF No. 52].

Defendant contends that the Notice violates the Local Rules, fails to meet the requirements for “supplemental” authority, and relies on two non‐binding, distinguishable opinions. [ECF No. 52, p. 1]. But just like Plaintiffs’ Notice, Defendant’s motion/response goes on for a few pages explaining why these two cases are inapplicable. [Id. at pp. 2‐5]. Unsurprisingly, Plaintiffs argue that the Notice constitutes supplemental authority and does not contain any legal argument. Plaintiffs further contend that the Notice is nothing more than “brief statements” relating to the arguments made in their response and the two cases.
How do you think he will come down?

Read on:
The cases attached to the Notice are appropriate for submission to the District Court. Specifically, Plaintiffs’ response was filed on March 27, 2014, while the cases in the Notice were decided on March 27, 2014 and April 9, 2014. Thus, the cases could not have been known to exist at the time of Plaintiffs’ response. As such, they constitute new legal authority and will not be stricken. Girard, 2011 WL 4345443, at *3.
As for the remainder of the Notice, the Undersigned cannot reach the same conclusion. “Even the most superficial review of the notice[] reveal[s] that [it] contain[s] legal arguments.” Girard, 2011 WL 4345443, at *3. Plaintiffs’ attempt to couch their two pages of additional argument as permissible “brief statements” is unpersuasive. A brief statement, if allowed, is just that ‐‐ brief. Two pages of quotations and Plaintiffs’  gloss as to the meaning of these cases do not constitute “brief statements.” Moreover, because Plaintiffs’ Notice contains legal argument, it has, for all intents and purposes, prompted additional rounds of briefing. [See ECF Nos. 52; 56]. This is the precise situation that the Local Rules and the applicable case law authority are trying to prevent.
So there you have it -- keep it brief, kiddies!

2 comments:

  1. This is a recurring topic that should be addressed by the local rules committee. A local rule could clarify (reasonable) questions about just what should be stated in a notice of filing supplemental authority. And a local rule would go a long way to preventing the kinds of briefing battles that Judge Goodman points out in his order. It's not surprising that case law exists on this topic, but case law isn't as good as a clear, concise, and easily applied rule.

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  2. Yeah I often find myself explaining the case (more so than twisting the opinion in my favor) so that the Court/Law Clerk doesn't have to read the entire thing, and has some clue as to why I'm citing the case. Ive never felt comfortable simply filing a stack of papers in support of a position and expecting/hoping they would be read. Sure you have oral argument to bring attention to certain passages and pages, but Id rather be able to at least identify points of interest beforehand. But maybe Ill just file the notice and attach the opinions from now on *sigh*. More importantly, will my client let me bill for that?

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