The Forgotten Section of a Supreme Court Brief

If I had to pick the one section most frequently overlooked by attorneys filing cert petitions, it is what we at Cockle colloquially call the “appendix index.”  That section has gained importance because the Supreme Court recently amended their rules to require an index in every brief containing an appendix.  In this post, I will explain the rules governing appendix indexes, the reason why the Court requires them, and the different forms that they may take.

The appendix index did not officially arrive until a change in the Court’s rules in 2007.  The Court attached one sentence to Rule 14.1(c), which states that “[t]he table of contents shall include the items contained in the appendix.”  What that means in practice is placing—at the end of the Table of Contents—a listing of the appendix documents in the order that they appear in the appendix.  The Court’s new Rule 34.4 codifies a practice we suggested at Cockle (on suggestion from the Clerk’s office) to place an appendix index in every brief that contains an appendix.

The Court changed the rules requiring an appendix index for pragmatic reasons.  A gentleman at the Clerk’s office told me that the change reflects a trend towards more user-friendly briefs.  Now a Justice or Clerk may flip to the Table of Contents and discover what documents are contained in the appendix, what order those documents are in, and what page number the particular documents are to begin. 

In the new rule, there is no suggestion on the form of the appendix index, and in fact, there are a number of ways to list the appendix documents in the Table of Contents.  Here are just a few examples from some of the leading Supreme Court practitioners.  University of Washington School of Law Professor, Eric Schnapper, lists what type of document (i.e., order, opinion or judgment), the court that issued the document, and the date the document was decided.  Former Solicitor General, Seth Waxman, separates the appendices into letters (i.e., A, B, C, etc.), describes the type of document and the court that issued it.  Amy Howe, of Howe & Russell and SCOTUS Blog fame, simply lists the documents with a few short words (i.e., “Court of Appeals Decision, District Court Decision, Denial of Rehearing En Banc”).  As described above, these highly successful Supreme Court practitioners use a variety of means to achieve the same result: the appendix index. It is not necessarily the form, but the existence of the index in your brief that matters.

No one wants to file a brief that does not conform to the letter of Supreme Court rules.  It is therefore important that you check the Table of Contents for an appendix index before you send the brief to the printer.

A Tour of Talent: My Weekend Trip to Harvard University

Ann Marie and Shon R Hopwood at Memorial Church, Harvard University

My wife Annie and I had a wonderful trip to Harvard University.  We stayed at the famous Preacher’s Suite in Lowell House, and Sandy Alexander of WilmerHale was a gracious host.  The following is a recap of our trip.

We toured the Cambridge campus on Saturday.  I gave a short speech to a group of Harvard faculty and alumni at Memorial Church on Sunday morning. That evening the CBS Early Show taped Annie and me meeting Seth Waxman and Noah Levine of WilmerHale at a local Cambridge restaurant.  We had a quick dinner before shuffling back to Lowell House for a Q&A with Harvard undergrads. (Although once some of the law school students heard news of Seth’s appearance, a few of them snuck in as well.) 

First-year Harvard law school student, Sandra Ullman (who was amazingly smart and thoughtful), provided Annie and me with a tour of Harvard law school on Monday morning.  I was able to find a very old copy of Blackstone’s treatise, but unfortunately I could only view it behind glass.  We also observed a criminal law class from the back row.  The discussion was centered on R v Dudley and Stevens, (1884), the English case concerning a shipwreck, a murder and cannibalism on the high seas.  There the Court ultimately held that necessity is not a defense to murder. I enjoyed listening to students formulate answers to questions on necessity and was surprised with their ability to argue a position notwithstanding the unusual factual scenario.  We later had lunch with several of those students. The trip ended with a visit to the WilmerHale office in downtown Boston.    

I left Cambridge with several impressions.  The level of talent there is truly remarkable.  Everyone we had the pleasure of meeting was gifted in a number of areas.  Equally impressive was the level of collegiality there, given the diverse interests.  They made us feel like part of the family, especially at Lowell House.

For me, the highlight of the weekend was finally meeting my friends Noah and Seth in person.  Those two have played a profound role in my life. 

Seth Waxman, Shon R Hopwood, Noah Levine

Weekend Trip to Harvard University

My wife Ann Marie and I are traveling to Boston tomorrow for a three-day trip to Harvard University.  I have been asked to speak to a group of Harvard faculty and undergrad students, and on Monday, I will be sitting in on a criminal law school class.

The trip is exciting for a number of reasons.  For those of you who know my story, I worked with attorneys Seth Waxman and Noah Levine, both of WilmerHale, on the Fellers v. United States case.  Since Fellers ended, we have kept in contact and developed a friendship through a steady stream of telephone, mail, and email correspondence.  On Sunday, I will finally meet Seth and Noah face-to-face. And The Early Show on CBS will also be at Harvard taping part of my trip! 

Sandy Alexander of WilmerHale in Boston is sponsoring the trip.  I will post the details (and possibly some pictures) upon my return to Cockle on Wednesday