I arrived in the Motor City early this morning for the 73rd Sixth Circuit Judicial Conference where I’m serving as a delegate for Sixth Circuit Judge Alan E. Norris. One of the most interesting presentations of the day featured a panel discussion of judges and lawyers who offered their no-holds-barred perspectives and observations about one another. The panel included Sixth Circuit Judge Jane B. Stranch, Chief District Judge Solomon Oliver, Jr. from the Northern District of Ohio, lawyer Thomas W. Cranmer from Michigan, and our very own Pierre Bergeron, who addressed a packed room of judges and lawyers. Sixth Circuit Judge Julia Smith Gibbons presided over the panel.
During the presentation, Judge Stranch expressed pride in the fact that the Sixth Circuit remains very liberal in allowing oral argument and giving parties an opportunity to be heard, but at same time she lamented that the Court struggles with managing the workload and issuing opinions promptly (at least when compared to other Circuits that maintain less liberal policies on oral argument). During his remarks, Judge Oliver touched upon the need for lawyers to properly and accurately cite to the record when addressing the Court. Indeed, in our prior blog posts, we have stressed the importance of practitioners portraying the factual record accurately and fairly. Sixth Circuit Rule 28, for example, addresses “references to the record” and states that “[a] brief must direct the court to those parts of the record to which the brief refers.” Factual statements without record citations are an immediate red flag to the judge and their law clerks, and Judge Oliver’s comments reflected this fact.
During his portion of the presentation, Pierre Bergeron discussed the importance of developing the record at the trial court level to ensure a successful appeal. This is an often overlooked factor that can shape a party’s prospects on appeal, and it should not be ignored. Indeed, as Pierre pointed out, sometimes the success of an appeal can be traced to the very beginning of a case and can hinge on the what is—or is not—included in the Complaint. Pierre’s comments clearly resonated with the audience.
Pierre also drew audience reaction when he discussed the difficulty that some parties face in getting district courts to rule on their motions. Sometimes a district court will rule on a summary judgment motion even though the outcome of the motion fairly should be predicated on an earlier discovery dispute (perhaps the admissibility of a key evidence) that never was ruled upon. This creates issues on appeal. On this point, Thomas Cranmer stressed the need for parties to work out discovery issues on their own, whenever possible.
Another highlight of the day was the lunchtime presentation by Thomas Ginsburg, the Deputy Dean of the University of Chicago College of Law, who delivered a highly engaging presentation on the enduring influence of Magna Carta on contemporary constitutions around the world. The year 2015 marks the 800th anniversary of the sealing of Magna Carta, and a wide range of events and activities have been planned around the world to celebrate Magna Carta’s central place in English history and its impact around the world.
A full day of presentations is scheduled for Thursday’s session at the Sixth Circuit Judicial Conference, culminating in an evening banquet where the guest speaker will be U.S. Supreme Court Justice Elena Kagan.
