CIT Judges Offer Tips for Brief Writing, Oral Argument at Judicial Conference

Choe-Groves opened the event by telling the attorneys in attendance to ensure that the cases they cite in their briefs actually say what they are claimed to say, since the law clerks and the judges will go and check every cited case. She said she notices if the attorney "puts a spin on it, and it's not accurate."

Katzmann concurred, adding that it's helpful for counsel to explain in the opening brief "what's going on in the case." The judge said he will often find counsel assuming that everyone involved in the case understands what the particular entity or product at issue is, and this may not always be the case.

Kelly suggested that attorneys should focus on large-scale organization, explaining that she likes to know "what the issue is" but also what the law says. "Tell me what Commerce did and tell me what the issue is and apply it," Kelly said. While this organizational structure in briefs before the court seemingly occurs with regularity, Kelly has found otherwise.

The judge also encouraged counsel to not be conclusory, expressing empathy with counsel who get overly wrapped in the weeds of an issue that they forget to include a clearer analysis in their briefs. Choe-Groves agreed, citing Commerce's issues and decisions memos as trouble areas. The judge said the government will often cite its administrative briefs and make a conclusion, though these briefs are not evidence nor are they the law. "That is not helpful," Choe-Groves said, noting that she often remands cases that include such analysis.

Regarding reply briefs, Kelly said she finds it frustrating when a party doesn't address "what's obviously a good argument," adding that parties should also cite more to the record. "Point me to the document that you want me to read that tells me [opposing counsel] is going to lose," the judge said. Katzmann encouraged counsel to not merely repeat their arguments in their reply briefs, noting that the reply "should engage with the issues."

The judges discussed tips for oral argument, starting with their practices of sending the parties written questions before argument. While Katzmann was the only one of the three to also require written answers, Kelly said that she's considering adding a similar requirement. Choe-Groves said that while she doesn't require written answers, she will send signals. For instance, if the judge asks what evidence in the record supports a given argument, she means she looked through the record and couldn't find the support claimed by the attorney.

During argument, Kelly said, she finds it helpful when counsel will slightly alter the framing of a question from the court if the attorney believes the question isn't the right one for the case. Choe-Groves suggested bringing copies of the record for all relevant parties, including the judge, law clerks and opposing counsel, especially where she has asked a question about the record. "I see that surprisingly frequently where people don’t bring copies for other lawyers," the judge said.

On advice for the actual oral argument, Choe-Groves said the best tip "is to just listen." Take in opposing counsel's argument and "go right into the heart" of their best points "because that's what I'm thinking about as well," the judge said. Katzmann suggested that on the morning of the oral argument, counsel should always check the status of all relevant cases currently being litigated. He added that counsel should conduct "mock argument with someone who's not an expert in your area."

Meanwhile, Kelly said that counsel should promote "absolute candor" during oral argument, noting that "no good can come from pretending" that a losing issue isn't a loser. Papering over the issue will cause the attorney to lose credibility, the judge said.

The judges also discussed the filing of extension requests, with Choe-Groves discussing her policies for encouraging short extension requests. The judge said she is driven by CIT Rule 1, which calls for expeditious resolution of cases, explaining that she prefers to stick with the dates selected by the parties in an effort to hold the litigants to those dates. Often times, extension requests will be premised on counsel's competing litigation commitments in other courts, which Choe-Groves said sends a signal that counsel is prioritizing other courts. "I’m trying to make the parties prioritize CIT cases," the judge said, urging litigants to carefully review their calendars before setting a briefing schedule.

Responding to a question on specific advice for customs practitioners, Choe-Groves said she enjoys "demonstratives," particularly pictures and diagrams of the product at issue. "I welcome physical exhibits in court," the judge added. Kelly cautioned customs practitioners against jumping right into the competing subheadings in their argument. The judge said that parties should start with the relevant Harmonized Tariff Schedule headings, chapter notes and section notes first.