Message from the Chairs

We are looking forward to an exciting year for our Committee. We are very pleased with the progress that we have made with revamping the Appellate Practice Journal. We continue to look for high quality content that will be of substantial interest to appellate practitioners, as well as content targeted at less experienced appellate practitioners. To that end, this issue includes an article discussing the considerations and rules pertinent to settlement and mediation of appeals in the federal appellate courts. It also includes an article that examines the standards for surviving dismissal in federal court in light of the Supreme Court’s decisions last term in Bell Atlantic v. Twombly and Erickson v. Pardus. And it includes an article that presents several valuable tips for judicial law clerks. Look for similarly useful and interesting material in our upcoming issues.

Please consider visiting our Committee’s web site. We regularly update our “Appellate Buzz” section, which provides both original and timely original content about hot topics in appellate practice as well as links to timely items of interest to appellate practitioners. Our site also contains several substantive articles that appellate practitioners should find informative and useful, summaries of cases relating to appellate practice, and “e-flash” summaries of other important developments in appellate practice.

We are very enthusiastic about our substantive programming for this ABA year. The Section of Litigation Annual Conference will take place from April 16-18, 2008, in Washington, D.C. Our Committee will be presenting a plenary program, entitled Separate But Equal – The Clash Between the President and Congress Over the Power to Wage War. This program will feature multimedia presentations and a mock oral argument by two outstanding appellate advocates before a panel of distinguished judges of a hypothetical case involving the constitutional clash between the Executive Branch’s power to wage war and Congress’s prerogative to appropriate or withhold funds for military operations. Our Committee, along with the Trial Practice Committee will also be presenting a substantive program entitled The Litigator’s Toolbox: Presenting Winning Oral Arguments to Trial Judges and Administrative Agencies. This program will also feature multimedia presentations and a mock argument by two outstanding advocates to a panel of trial judges; it will address the style, substance and organization of such arguments, as well as developing compelling themes, using demonstrative aids, and preserving the record for appeal. Finally, our Committee, along with the Trial Practice Committee, will be presenting a substantive breakfast program, entitled The Role of the Department of Justice in Major Trial and Appellate Litigation in the United States. This program will feature a point-counterpoint clash between representatives of the Bush administration and former Justice Department officials on the Department’s role in major litigation of issues of current importance such as national security, terrorism, punitive damages, intellectual property, antitrust, civil rights, and employment law. We also plan to have a Committee dinner in Washington, D.C. during the conference. We will provide additional details soon.

Please also mark your calendars for the ABA Annual Meeting, which will take place from August 7-10, 2008, in New York, NY. On Friday, August 8, our Committee will be presenting a Presidential Showcase program along with the International Law Section of the ABA on the effects that 9/11 has had on U.S. and international law on terrorism, the seizure, treatment, and rights of enemy combatants, measures to prevent terror attacks, and related issues. We also plan to have a Committee dinner and may be presenting other programs in New York as well. Stay tuned for more details.

We also plan to continue presenting CLE “Hot Topics” Teleconferences regarding cutting-edge issues in the United States Supreme Court, as we have in previous years. And we plan to expand our “brown bag” regional CLE programs focusing on the key techniques for persuasive appellate brief writing and oral advocacy. We presented the first of these seminars in Washington, D.C. in June 2007. Look for programs this spring and summer in Los Angeles, Washington, D.C. and other locations.

Also be on the lookout for our Committee’s forthcoming book, A Practitioner’s Guide to Appellate Advocacy, which will likely be published in mid-2008. The Guide will provide “nuts and bolts” suggestions and techniques for complying with appellate procedure, writing persuasive and compelling appellate briefs, and delivering outstanding oral arguments.

On a more substantive note, a particularly interesting set of cases that the Supreme Court has considered over the past two terms is the consolidated cases of Boumediene v. Bush and Al-Odeh v. United States. These cases address the constitutionality of the Military Commissions Act of 2006, which stripped U.S. courts of jurisdiction to consider writs of habeas corpus brought by Guantanamo detainees, in favor of a more limited alternative process for reviewing detainees’ claims that they should be released. An intriguing element of the case is that the Court denied certiorari last term, only to reverse course and grant review on the last day of the term. This case involves important questions of due process, the limits of congressional and executive authority, and the role of international law with respect to United States national security law. It will be very interesting to see how the Court resolves these issues. We will continue to follow these and other interesting and important cases this term.

Paul J. Watford
Todd A. Holleman
Lawrence D. Rosenberg
Co-Chairs, Appellate Practice Committee