Text File

GUIDE FOR COUNSEL

IN CASES TO BE ARGUED

BEFORE THE

SUPREME COURT OF THE UNITED STATES

Prepared by: Clerk of the Court Supreme Court of the United States 1 First Street, N. E., Washington, D. C. 20543 www.supremecourtus.gov

October Term 2000

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TABLE OF CONTENTS Page

PART I. INTRODUCTION............................................. 1

PART II. ARGUMENT ..................................................... 2

PART III. COURTROOM SEATING............................... 11

PART IV. DECISIONAL PROCESS .............................. 12

PART V. INFORMATION ............................................... 13

PART VI. RECORD ............................................................ 15

PART VII. JOINT APPENDIX ......................................... 15

PART VIII. BRIEF FOR PETITIONER.......................... 19

PART IX. BRIEF FOR RESPONDENT ....................... 20

PART X. REPLY BRIEF................................................. 20

PART XI. SUPPLEMENTAL BRIEF............................ 20

PART XII. AMICUS CURIAE BRIEF ........................... 21

I

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SUPREME COURT OF THE UNITED STATES

Guide for Counsel in Cases to be Argued Before this Court

I. INTRODUCTION This guide is designed to assist attorneys preparing cases for argument before this Court, especially those who have not previously argued here. It is not a substitute for the Rules of the Supreme Court. Counsel shall become familiar with the revised Rules, effective date May 3, 1999. The Clerk will notify counsel when the Court enters an order noting probable jurisdiction, postponing jurisdic- tion, or granting a petition for a writ of certiorari. Counsel will be furnished written instructions by mail concerning general information and preparation of the joint appendix. A specification chart will be provided that clearly shows the colors to be used for the covers of briefs. Please read these materials carefully, as they set forth certain steps counsel shall take. Any questions counsel have respecting cases to be argued shall be directed to the Clerk through the Merits Cases Clerk, 2024793032. Since all records are kept by docket number, it is important that counsel have at hand the Supreme Court docket number when seeking information. NOTE: It is of utmost importance to inform the Merits Cases Clerk of any changes regarding counsel of record.

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2 GUIDE FOR COUNSEL, PART II

II. ARGUMENT Oral arguments are normally conducted during the months of October through April. A 2-week session is held each month with arguments scheduled on Monday through Wednesday of each week. Rule 28 contains additional infor- mation concerning oral arguments. Several weeks before the scheduled argument date the Clerk will send an appropriate notice to counsel, together with an argument form to be completed and returned promptly to the Clerk. Please note that after the argument schedule is set, the Clerk cannot make changes. If counsel have any longstanding professional or religious commitments or for some reason cannot appear for oral argument on any date in the future (particularly within the two argument ses- sions following the due date of respondent's brief), these matters shall be called to the Clerk's attention by letter with a copy to opposing counsel. To the extent possible, the Clerk will endeavor to schedule the oral argument to avoid conflicts. Please advise the Clerk of any necessary accom- modations (e. g., a wheelchair), to permit the Clerk and the Marshal to make suitable arrangements for counsel at the argument tables. No personal computers, cellular phones, cameras, or any other electronic devices are allowed in the Lawyers' Lounge or the Courtroom, and must be checked in a locker at the Court. Arguing counsel and co-counsel shall report to the Law- yers' Lounge on the first floor of the Court between 9 and 9:15 a.m. on the day of argument. Coats, hats, and papers of arguing counsel and co-counsel may be left in the Lawyers' Lounge. The Clerk will brief counsel concerning proce- dures and protocol and answer questions. This normally takes about 15 minutes. Identification cards will be issued to arguing counsel and those counsel authorized to sit at the argument tables. When only one counsel will argue, the Court will accommodate two co-counsel at the table. If di- vided argument has been granted and two counsel are to

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GUIDE FOR COUNSEL, PART II 3

argue, the Court will accommodate each arguing counsel and one co-counsel per each arguing counsel at the table. After you have met with the Clerk and received your iden- tification card, you should report immediately to the Court- room officials inside the railing to be assigned an appropriate seat. You should advise the Courtroom officials if you are scheduled to move the admission of an attorney. Unless you make other arrangements with the Marshal, the white light on the lectern will be activated when five minutes of your allotted time remains. The red light will be activated when your time has expired. The Court convenes at 10 a.m. and normally hears two cases in the morning and two in the afternoon, beginning promptly at 1 p.m. Counsel are required to be at the backup argument table when the preceding case is being argued. Please confer with the Courtroom officials to verify the order of argument, and bear in mind that occasionally cases may conclude earlier than planned. Counsel in the third case shall be at the backup table when counsel in the second case have vacated this table and moved forward to the argument table. There have been instances when argument on the third case commenced before the noon recess, and counsel in the fourth case were expected to be at the backup table while the third case was being argued. It is important, therefore, that counsel advise the Courtroom officials if they must leave the Courtroom for any reason while prior cases are being argued. When the Chief Justice announces that the Court will now hear argument in your case, you should immediately proceed to the front counsel tables (unless you are already there). If you are counsel for the petitioner, you should proceed promptly to the lectern-do not wait for the Chief Justice to issue an invitation. Remain standing at the lectern and say nothing until the Chief Justice recognizes you by name. Once he has done so, you may acknowledge by the usual: "Mr. Chief Justice and may it please the Court . . . ." Do not introduce yourself or co-counsel. Under the present practice, "Mr." is only used in addressing the Chief Justice.

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4 GUIDE FOR COUNSEL, PART II

Others are referred to as "Justice Stevens," "Justice O'Con- nor," or "Your Honor." Do not use the title "Judge." If you are in doubt about the name of a Justice who is address- ing you, it is better to use "Your Honor" rather than to mis- takenly address the Justice by another Justice's name. You should assume that all of the Justices have read the briefs filed in your case, including amicus curiae briefs. Expect questions from the Court, and make every effort to answer the questions directly. If at all possible, use "yes" or "no," and then expand upon your answer if you wish to do so. If you do not know the answer, it is suggested you so state. On one occasion, instead of responding to a ques- tion from a Justice, an attorney posed a question to the Jus- tice, only to have another Justice chastise him for asking a Justice a question. If a Justice poses a hypothetical question, you should re- spond to that question on the facts given therein. In the past, several attorneys have responded: "But those aren't the facts in this case!" The Justice posing the question is aware that there are different facts in your case, but wants your answer to the hypothetical question. Answer, and thereaf- ter, if you feel it is necessary, say something such as: "How- ever, the facts in this case are different," or "The facts in the hypothetical question are not the facts in this case." Be careful when you answer a hypothetical question posed by a Justice. A "yes" or "no" answer might be suitable for a narrow question. Nevertheless, your answer should be carefully tailored to fit the question. A simple "yes" or "no" in response to a broad question might unintentionally con- cede something and produce a follow-on question the answer to which is damaging to your position. You should speak in a clear, distinct manner, and try to avoid a monotone delivery. During argument you should speak into the microphone so that your voice will be audible to the Justices and to ensure a clear tape recording. You should avoid having notes or books touch the microphones, since this interferes with the recording process. Under no circumstances should you read your argument from a pre-

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GUIDE FOR COUNSEL, PART II 5

pared script. You should be knowledgeable about what is or is not in the record in your case. Justices frequently ask counsel if particular matters are in the record. If you are asked a question that will require you to refer to matters not in the record, your answer should so state; then proceed to respond to the question unless advised otherwise by the Jus- tice. Never under any circumstance interrupt a Justice who is addressing you. Give your full time and attention to that Justice-do not look down at your notes and do not look at your watch or at the clock located high on the wall behind the Justices. If you are speaking and a Justice interrupts you, cease talking immediately and listen. When other Justices ask questions before you complete your answer to the first Justice, you should take a common- sense approach in determining which of the questions should be answered first. You might consider responding to the last question, indicating, if you believe it to be the proper thing to do, that you will answer that question first before completing your answer to the prior question. Alterna- tively, you may indicate to the last questioner that it would assist you in making your response if you could first conclude your answer to the first Justice's question, at which time you would complete your response to the first Justice. There is no definite rule of protocol. However, ordinarily if two Jus- tices start to speak at once, the junior Justice withdraws in deference to the senior. Perhaps by analogy you could re- spond to the senior Justice's question first, then address questions from junior Justices. When the Marshal activates the white light-the 5-minute warning-you should be prepared to stop your argument in five minutes. When the red light comes on, terminate your argument immediately and sit down unless you are answer- ing a question from a Justice, in which event you may con- tinue your answer and respond to any additional questions from that Justice or any other Justice. In this situation you need not worry that the red light is on. Do not, however, continue your argument after the red light comes on.

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6 GUIDE FOR COUNSEL, PART II

If you are counsel for the petitioner and have planned for rebuttal argument, do not ask the Chief Justice how much time you have remaining-it is your obligation, or that of your co-counsel, to keep track of your time. When counsel desires time for rebuttal, or when divided argument has been authorized, arrangements may be made with the Marshal, before the case is called, to have the white light flashed at a specified time. When the Court has authorized divided argument and counsel have agreed to the allotment of time for argument, the use of more than the agreed time by one attorney does not increase the total time allotted. Regard- less of how many attorneys argue in a case, only one is per- mitted to present rebuttal argument. When counsel for the petitioner arrives at the podium to make the rebuttal argu- ment, the Chief Justice will announce how many minutes of the allotted time are remaining. Your argument time is normally limited to 30 minutes. You should not attempt to enhance your argument time by a rapid fire, staccato delivery. Ordinarily, the Justices will know whether you are making your first argument before the Court. Be assured that some first-time arguments have been far superior to presentations from counsel who have argued several times. Ordinarily, counsel for the petitioner need not recite the facts of the case before beginning argument. The facts are set out in the brief and they have been read by the Justices. Be careful to use precise language. In one case, counsel stated, "The Supremacy Clause does not apply in this case." A Justice responded: "The Supremacy Clause applies in every case. Perhaps counsel meant that the statute in ques- tion does not conflict with the Supremacy Clause." Your argument should focus only on the question pre- sented in the petition that was granted. Do not deviate from it. Stick with it! A Justice will often ask counsel seeking to establish a new precedent: "Do any cases from this Court support your posi- tion?" Be ready for the question, but be careful to cite only those cases that support your position. Do not distort the

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GUIDE FOR COUNSEL, PART II 7

meaning of a precedent. If you are relying on a case that was announced by a "plurality opinion," be sure to mention that there was no "opinion of the Court" in the case. Do not refer to an opinion of the Court by saying: "In Justice O'Connor's opinion." You should say: "In the Court's opinion, written by Justice O'Connor." Know the record, especially the procedural history of the case. Be prepared to answer a question like: "Why didn't you make a motion for summary judgment?" You have the opportunity to inform the Justices about facts of which they are not aware. Justices frequently ask: "Is that in the rec- ord?" Be prepared to answer. It is impressive when you can respond with the volume and page where the information is located. It is also quite effective to quote from the joint appendix. Do not make assertions about issues or facts not in the record. Know your client's business. One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: "What is the difference between beer and ale?" The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner. If you quote from a document verbatim (e. g., a statute or ordinance), tell the Court where it is located (e. g., page 4, appendix B to the petition). Do not bring numerous volumes to the lectern. One note- book will suffice. Please note that a legal size pad does not fit on the lecturn properly. Turning pages in a notebook appears more professional than flipping pages of a legal pad. Some brave counsel know their cases so well that they argue without any notes. It has been said that preparing for oral argument at the Supreme Court is like packing your clothes for an ocean cruise. When packing for the cruise, you should lay out all the clothes you think you will need, then return half of them to the closet. When preparing for oral

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8 GUIDE FOR COUNSEL, PART II

argument, eliminate half of what you initially planned on covering. Your allotted time evaporates quickly, especially when numerous questions come from the Court. Be pre- pared to skip over much of your planned argument and stress your strongest points. Some counsel find it useful to have a section in their notes entitled "cut to the chase." They refer to that section in the event that most of their time has been consumed by answer- ing questions posed by the Justices. This allows them to use the few precious minutes remaining to stress their main points. Remember that briefs are different from oral argument. A complex issue might take up a large portion of your brief, but there might be no need to argue that issue. Merits briefs should contain a logical review of all issues in the case. Oral arguments are not designed to summarize briefs, but present the opportunity to stress the main issues of the case that might persuade the Court in your favor. Counsel for respondents are often effective when they preface their argument by answering questions that petition- er's counsel could not answer or answered incorrectly. This can often get you off to a positive start. Rebuttal can be very effective. But you can be even more effective if you thoughtfully waive it when your opponent has not been impressive. If you have any rebuttal, make it and stop. There is no requirement that you use all your allotted time. When a Justice makes a point that is adverse to you, do not "stonewall." Concede the point and proceed with your argument. Do not "correct" a Justice unless the matter is essential. In one case a Justice asked a question and mentioned "waiver." Counsel responded by stating that a "forfeiture" rather than a "waiver" was involved. The distinction was irrelevant, but the comment generated more questions and wasted valuable time.

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GUIDE FOR COUNSEL, PART II 9

If a question seems hostile to you, do not answer with a short and abrupt response. It is far more effective to be polite and accurate. In appropriate cases, suggest to the Court that bright line rules should be adopted and suggest what they should be. Attempts at humor usually fall flat. The same is true of attempts at familiarity. For example, do not say something like: "This is similar to a case argued when I clerked here." Do not denigrate opposing counsel. It is far more appro- priate and effective to be courteous to your opponent. If your argument focuses on a statute, regulation, or ordi- nance, be sure it is printed in full in one of your pleadings so that you can refer the Justices to it and they can be looking at it during your argument. Exhibits can be useful in appropriate cases, but be very careful to ensure that any exhibit you intend to use is appeal- ing, accurate, and capable of being read from a distance of about 25 feet. Counsel must advise the Clerk of any intent to use an exhibit as soon as possible. For a good example of an exhibit used at oral argument in this Court, see Shaw v. Reno, 509 U. S. 630, 658 (1993). Do not argue facts. Argue to the question or questions of law presented in the petition for a writ of certiorari that was granted by the Court. The Supreme Court is not a jury. A trial lawyer tries to persuade a jury with facts and emotion. At this Court, counsel should try to persuade the Court by arguing legal theories. Avoid emotional oration and loud, impassioned pleas. A well-reasoned and logical presentation without resort to his- trionics is easier for listeners to comprehend. If your opponent is persuasive on a certain theme during argument, especially one that was not anticipated, you should grasp that significance and address the issue at the outset of argument or rebuttal argument rather than adhere to a previously planned presentation. You take a great risk if you ignore a persuasive point scored by your opponent.

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10 GUIDE FOR COUNSEL, PART II

Anticipate what questions the Justices will ask you and be prepared to answer those questions. If a case with issues similar to yours was previously argued in this Court, con- sider obtaining a transcript of oral argument in that case to review. That might help you anticipate questions that those Justices who heard the previous case might ask in your case. If a counsel stumbles on a question from the Court or does not fully answer it, it is a good tactic for an amicus curiae counsel supporting that counsel's side to begin argument by repeating the question and answering it correctly and com- pletely. The amicus counsel will have had time to reflect on the initial question and perhaps develop a better answer. In a divided argument, it is effective if counsel inform the Court of their argument plan. For example, petitioner's counsel might say: "I will cover the Fourth Amendment as- pects of this case and counsel for the amicus will argue the Fifth Amendment issues." It is appropriate for co-counsel to occupy the arguing coun- sel's chair when the latter is presenting argument. Except in extraordinary circumstances, co-counsel do not pass notes to arguing counsel during argument. The quill pens at your argument table are gifts to you-a souvenir of your having argued before the highest Court in the land. Take them with you. They are handcrafted and usable as writing quills. Promptly and quietly vacate the front argument table after the Chief Justice announces that "the case is submitted." Many attorneys find it very educational to attend a Court- room session before their scheduled argument day. If you choose to do this, feel free to come by the Clerk's Office and introduce yourself to the Clerk. The same applies to the Marshal. Counsel in cases to be argued after the luncheon recess should assemble promptly at the Clerk's desk in the Court- room when the recess begins. An escort will arrange speedy service for arguing counsel in the cafeteria. This

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GUIDE FOR COUNSEL, PART III 11

does not include your spouse or other guests. Counsel should return to the Courtroom by 12:50 p.m. Appropriate attire for counsel is conservative business dress. To obtain a copy of the transcript of your argument, contact Alderson Reporting Company, 8003673376 or 2022892260.

III. COURTROOM SEATING If arguing counsel desires to reserve space in the public section, counsel shall contact the Marshal's Office after com- pleting and returning the argument form to the Clerk. A letter concerning reservations, including the names of guests, should be sent to: Marshal, Supreme Court of the United States, Washington, D. C. 20543. However, the Mar- shal, depending on available space, will endeavor to accom- modate as many of your guests as possible-not exceeding six spaces per side. When two counsel are arguing on a side, the maximum per each is four, if space is available. When your guests arrive at the Court on the argument day, they should check coats, hats, briefcases, cameras, electronic equipment, reading and writing materials, and similar items in the cloakroom on the first floor (Courtroom level) that is located inside the building near the front door. They should then proceed to the Marshal's Office, which is located to the right as you face the main entrance to the Courtroom. An attendant, seated at a small table in the hallway outside the Marshal's door, will receive your guests. Guests must be escorted through the metal detectors and into the reserved seating area of the Courtroom. Members of this Court's Bar are invited to sit inside the brass railing. Before entering, they will be required to re- port to the Clerk's assistant who is seated adjacent to the statue of Chief Justice John Marshall in the Lower Great Hall on the ground floor. Use the north entrance door (Maryland Ave. side of the building) to reach the check-in desk. The north entrance opens at 7:30 a.m. The Supreme Court Bar check-in process normally begins at 9:00 a.m.

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12 GUIDE FOR COUNSEL, PART IV

Show the assistant an identification card and your name will be checked against the Bar membership roster. Please in- form the assistant if your name is different from the one used when you were admitted to the Bar. Bar members will be issued a pass and directed to proceed to the first floor where the Courtroom is located. Seating is on a first-come, first- seated basis. When the bar section is filled, remaining bar members will be seated in the Lawyers' Lounge where argu- ments can be heard through an audio speaker. Bar mem- bers are asked to wear professional business attire. Courtroom seating is extremely limited. Spectators are seated first come, first seated, either for an entire argument or on a short (three minute) rotation to view proceedings. Groups can request reserved seating in increments of 15 per- sons by writing the Marshal of the Court as far in advance as possible. If you or a guest needs a hearing impaired device, please request assistance from the Marshal's Office.

IV. DECISIONAL PROCESS After a case has been argued, the Court will have a Con- ference, and the case will be assigned to a Justice to write the majority opinion. Opinions may be handed down at any time after the argument. The only information the Clerk or his staff can give you in this regard is that cases argued during the Term are usually decided before the end of June. Opinions under the present practice are released in the Courtroom on any day the Court is sitting. Opinions are usually released on Tuesday or Wednesday when the Court sits for oral argument and on Monday when the Court sits for the announcement of orders and group Bar admissions. Counsel should also be aware that in June the Court fre- quently adds additional sittings during the week to announce opinions. Counsel may call the Clerk's Office or Public In- formation Office on Friday afternoons to learn the schedule for the coming week. Opinions are typically announced at 10 a.m. and are released to the public and news media-in both written and electronic form-as they are read from the

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GUIDE FOR COUNSEL, PART V 13

Bench. When an opinion is announced, an Assistant Clerk will call arguing counsel and advise them of the ruling. However, due to time zone differences, counsel might not be notified until several hours after the media have had access to an opinion. Please do not ask the Court to telefax or read the entire opinion to you. Opinions are available on several websites and from commercial vendors who disseminate them by elec- tronic means. You can arrange for someone in the Washing- ton metropolitan area to pick up a copy of the opinion at the Court. The Clerk's Office will mail a copy of the opinion to arguing counsel and counsel of record the day it is released. The judgment or mandate of the Court will be issued by the Clerk following the passage of the 25-day time period after the release of the opinion, unless a petition for rehear- ing has been timely filed. Rule 45. If the petitioner prevails, the Clerk will provide for an award of costs, if appropriate, in the judgment or mandate. Rule 43. Only the costs of printing the joint appendix and the docketing fee may be awarded.

V. INFORMATION The Clerk and the staff wish to be helpful to counsel and will endeavor to answer all requests to assist them in their visit to the Supreme Court. Counsel can obtain the status of cases on the Supreme Court docket by calling the Clerk's Automated Response System (CARS) at 2024793034. Callers should have the Supreme Court docket number available. A synthesized voice will provide callers with current case status informa- tion. The Court's website (www.supremecourtus.gov), pro- vides access to slip opinions, Court calendar, argument calen- dar, Bar admission forms and instructions, Rules of the Court, guides to filing paid and in forma pauperis petitions, order lists, granted/noted lists, and other information about the Court. The Court's automated docket is available on the Supreme Court's website.

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14 GUIDE FOR COUNSEL, PART V

The Supreme Court is located at the corner of First Street and Maryland Avenue, N. E., directly across from the United States Capitol, and is easily reached by taxi or Metro (sub- way) from Ronald Reagan (National) Airport. The Union Station rail terminal and the Capitol South Metro terminal are within walking distance. The building is open from 9 a.m. to 4:30 p.m., Monday through Friday. Arguing attor- neys and co-counsel may enter the north entrance (Maryland Ave. side of the building) after 7:30 a.m. The building is closed Saturdays, Sundays, and holidays. It is accessible to persons with disabilities through the Maryland Avenue en- trance. There is virtually no parking available in the vicin- ity of the Supreme Court building. Topcoats, raincoats, umbrellas, hats, cameras, recording devices, and writing materials are not permitted in the Courtroom, except that attorneys seated in the Bar section can use writing materials. A checkroom is located at the front of the building on the Courtroom level. There are many hotels in the Washington metropolitan area, several of which are in the vicinity of Capitol Hill and are within walking distance of the Court. A detailed map of the Supreme Court and its immediate surrounding area, along with a hotel information packet, will be furnished by the Clerk's Office on request. Some hotels check regularly for the release of the argu- ment calendar and will communicate with counsel respecting reservations. Except for inclement weather, there is nor- mally no reason why counsel in the last argument would be required to stay in the Courtroom beyond 3 p.m. Accord- ingly, airline reservations can be made for departures after 5 p.m. from Ronald Reagan (National) Airport and 6 p.m. from Dulles Airport and Baltimore-Washington Interna- tional Airport, with no difficulty in meeting scheduled departures. The Supreme Court Historical Society has a gift shop on the ground floor of the Court where counsel can purchase

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GUIDE FOR COUNSEL, PART VII 15

mementos. A cafeteria, snack bar, and public telephones are also located on the ground floor. The Court has a large, residential corps of journalists who follow its docket closely. No interviews or news cameras are permitted in the Court building; however, they are al- lowed on the front plaza, and, on argument days, reporters frequently wait there to talk to counsel after argument has concluded. VI. RECORD If the certified record of the proceedings below has not been filed previously in this Court, the Clerk will request the clerk of the court possessing the record to certify and transmit it to this Court. Consequently, if counsel desires to have the record remain in the lower court for a short pe- riod of time, counsel shall notify this office immediately. Rule 16.2. VII. JOINT APPENDIX The primary responsibility for preparation of the joint ap- pendix (except in cases of an in forma pauperis petitioner) is placed upon counsel for the petitioner or appellant, who should begin such work immediately. The parties are urged to agree as quickly as possible upon the contents of the joint appendix. Rule 26.2. If the parties cannot agree upon the contents, counsel for the petitioner, within 10 days of the order granting the peti- tion for a writ of certiorari,* shall designate the portions of the record the petitioner intends to print. Please note that this is required by the Rules and it is imperative that top side counsel keep bottom side counsel informed. Counsel for the respondent shall make any counter designations within 10 days after counsel receives the petitioner's desig-

*This part and subsequent parts of the guide refer only to grants of certiorari, but the same instructions pertain to appeals and, in general, to original jurisdiction cases. Rules 17 and 18.

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16 GUIDE FOR COUNSEL, PART VII

nation. No cross designation may be made by the peti- tioner. These dates must be adhered to unless extended by the Clerk. Rule 26.2. Counsel for the petitioner shall keep the Clerk advised re- specting any disagreement or the dates when the designa- tions are made. Copies of the designations need not be for- warded to the Clerk. The printed joint appendix shall be filed with the Clerk within 45 days from the date the petition is granted. Rule 26.1. The parties should keep in mind that the entire record is always available to the Court for reference and examination. Accordingly, only those significant portions of the record, which have not been included within a brief, directly rele- vant to the issues being briefed shall be included. The briefs may always cite and rely upon portions of the record that have not been designated for printing in the joint appen- dix. Counsel shall not attach to their briefs any documents (e. g., exhibits, transcript) from the record that should have been contained in the joint appendix. On the parties' request, the Clerk may allow preparation of the joint appendix to be deferred until after the briefs have been filed. Deferral is not favored. It is appropriate only when the portions of a bulky record that need to be printed in the joint appendix cannot be determined until the issues have been sharpened in the parties' briefs. Rule 26.4. The joint appendix is a document separate and apart from the brief on the merits and is not to be physically attached thereto. The following guidelines shall be followed: 1. The color of the cover shall be tan. Rule 33.1(e). Please note with respect to the cover: (a) The cover shall bear all six items specified in Rule 34.1, including the name, address, and telephone and fax numbers of the respective counsel of record for the parties. (b) In addition, two lines shall appear at the bottom of the cover:

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GUIDE FOR COUNSEL, PART VII 17

(1) the date when the petition for certiorari was filed (or when the appeal was docketed); and (2) the date when certiorari was granted (or when jurisdiction over the appeal was noted or postponed). 2. (a) Rule 26.5 requires that the joint appendix be pref- aced by a table of contents. (b) Rule 26.1 requires that the joint appendix contain the following: (1) the relevant docket entries in all the courts below; (2) any relevant pleadings, jury instructions, findings, conclusions, or opinions; (3) the judgment, order, or decision under review; and (4) any other parts of the record that the parties par- ticularly wish to bring to the Court's attention. (c) The Court does not require the inclusion in the joint appendix of any of the foregoing items in subparagraph (b) which have already been reproduced in a petition for certio- rari, brief in opposition, or other specified documents. Rule 26.1. In that event, the joint appendix shall contain a notation directing the Court to the place where such items appear. Of course, if the material previously printed is only a few pages long, it would be advisable to reproduce it in the joint appendix for the convenience of the Justices. The Court, however, does not want lengthy material already printed to be reproduced in the joint appendix. If the par- ties nevertheless desire to reprint the opinions, judgments, orders, and decisions in the joint appendix, they shall be re- printed in full, without deletions. 3. The joint appendix shall be arranged so that the various documents appear chronologically to the extent possible. Documents or items not in the certified record shall not be reproduced in the joint appendix. 4. If no docket entries appear in the record, counsel for the petitioner shall prepare as a substitute a chronological list of the important dates on which pleadings were filed, hearings held, and orders entered. The provisions of Rule 26 for the printing of the docket entries require only the

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18 GUIDE FOR COUNSEL, PART VII

printing of entries relating to substantial and relevant mat- ters, unless a procedural step is germane to the issues presented. 5. The name of the lower court shall appear at the begin- ning of each item printed in the joint appendix. 6. The title of the case shall be printed at the beginning of the first item, and the opinions and judgments shall like- wise carry the title. The title need not be printed on any other papers, but a parenthetical note shall be inserted, i. e., (Title omitted in printing). 7. Jurats and certificates or affidavits of service may be omitted and an appropriate parenthetical note printed in their stead, i. e., (Jurat omitted in printing), (Certificate or affidavit of service omitted in printing). 8. Any deletions not specifically noted shall be indicated by asterisks. 9. So that testimony reprinted in the joint appendix may be compared with the original copy, the page at which it appeared in the transcript shall be indicated in brackets immediately before the statement set out. Rule 26.5. 10. The size of type and page requirements of material reproduced in the joint appendix, including that which is pho- tographically reproduced, are set forth in Rule 33.1. The text shall be typeset (e. g., hot metal, photocomposition, or computer typesetting) and reproduced by offset printing, photocopying, or similar process. The text shall be Roman 11-point or larger type with 2-point or more leading between lines. The typeface shall be similar to that used in current volumes of the United States Reports. Type size and face shall be consistent throughout. NO ATTEMPT SHALL BE MADE TO REDUCE, COMPRESS, OR CONDENSE THE TYPEFACE IN A MANNER THAT WOULD INCREASE THE CONTENT OF A DOCUMENT. See Rule 33.1(b) concerning quotations and footnotes. Counsel should refer to the memorandum to brief printing companies, that will be forwarded under separate cover, to serve as a guide in brief preparation.

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GUIDE FOR COUNSEL, PART VIII 19

To enable the Clerk to insert in the judgment an appro- priate award respecting costs, the petitioner, at the time the joint appendix is filed or soon thereafter, shall file with the Clerk an itemized statement from the printer of the cost of preparing 50 copies, unless increased by the Clerk, of the joint appendix, and shall serve a copy thereof on each of the parties to the proceeding. Rule 26.3.

VIII. BRIEF FOR PETITIONER The color of the cover shall be light blue. Rule 33.1(g)(v). The brief for the petitioner (40 copies) shall be filed with the Clerk within 45 days of the order granting the petition. Rule 25.1. Extensions of time to file briefs on the merits by either side are not favored. The form and content of the brief on the merits are governed by Rules 24 and 33.1. The brief shall not exceed 50 pages and the print shall be Roman 11-point or larger type with 2-point or more leading between lines. Footnotes shall be 9-point or larger. Briefs pro- duced on a personal computer using word processing soft- ware are considered to be standard printing and are accept- able if the type size and face are no smaller than that contained in current volumes of the United States Reports. Such briefs shall not be double-spaced. Please note that any appendix to a brief shall be limited to relevant material, and counsel shall not include in an appendix arguments or cita- tions that properly belong in the body of the brief. Rule 24.3. Applications to exceed the page limitations are not favored and should be submitted only in the most extraordinary case. Rules 22 and 33.1(d). Counsel shall submit such applications promptly, thus enabling counsel to modify the proposed brief and timely file it if the Circuit Justice denies the application to exceed the page limitations. Errata sheets will not be accepted for transmittal to the Court, nor will the Clerk's staff assume responsibility for making changes to a brief. It is the responsibility of counsel to read a brief before it is submitted to the Clerk and to make appropriate changes as necessary. If a brief has been

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20 GUIDE FOR COUNSEL, PART XI

filed with the Clerk and not circulated to the Court, counsel may arrange to have a representative come to the Clerk's Office to note the changes in the 40 copies of the brief on file. Opposing counsel shall be informed of such changes immedi- ately. After a brief has been circulated to the Court, and if there is some extraordinary reason for doing so, the Clerk will consider receiving 40 copies of a "corrected" brief for transmittal to the Court. Under no circumstances will an errata sheet or letter from counsel concerning errors be sent to the Justices.

IX. BRIEF FOR RESPONDENT The color of the cover shall be light red. Rule 33.1(g)(vi). The brief for the respondent (40 copies) shall be filed with the Clerk within 30 days after the date counsel received the petitioner's brief. Rule 25.2. The form and content of the brief on the merits are governed by Rules 24.2 and 33.1. Applicable guidance concerning type size and face and re- lated matters is contained in Part VIII, above.

X. REPLY BRIEF The color of the cover shall be yellow. Rule 33.1(g)(vii). The reply brief for the petitioner (40 copies) shall be filed with the Clerk within 30 days after the date counsel received respondent's brief or received by the Clerk one week before the scheduled oral argument date, whichever is earlier. Rules 24.4. and 25.3.

XI. SUPPLEMENTAL BRIEF The color of the cover shall be tan. Rule 33.1(g)(iv). Al- though a supplemental brief (40 copies) is permitted, it is limited to those matters contained in Rule 25.5 and shall be filed before the case is called for argument. No brief shall be filed after argument except upon leave of the Court. Rule 25.6.

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GUIDE FOR COUNSEL, XII 21

XII. AMICUS CURIAE BRIEF The color of the cover of an amicus brief in support of petitioner shall be light green. An amicus brief in support of the respondent shall be dark green. Rule 33.1(g)(xi) and (xii). An amicus brief (40 copies) shall be submitted within the time allowed for filing the brief for the party supported. It shall specify whether consent was granted, and its cover shall identify the party supported or indicate whether it sug- gests affirmance or reversal. Consult Rule 37 for informa- tion concerning consent and motions for leave to file.