How Cases are Decided at the COA, Part Three

May 16, 2014 § Leave a comment

Continuing with Presiding Judge Griffis’s paper …

3. Panel Consideration

a. Preparation

Before the panel conference, the assigned Judge is expected to have thoroughly reviewed the briefs, the record, the transcript and controlling legal authorities. The other panel Judges are expected to have reviewed the briefs, the record excerpts and controlling legal authorities. The record and the transcript are available to the other panel JUdges upon request.

A Judge may assign a law clerk to work on each case. A law clerk for the assigned Judge often prepares an initial draft opinion for review, checks the citations to the record or case authority, or researches various issues. Some Judges circulate draft opinions prior to the panel conference, while others may use a draft opinion to present the case to the panel conference.

b. Discussion

At the panel conference, the assigned Judge presents the case. The presentation includes a detailed discussion of the case’s procedural history, the facts, the issues in controversy, the standard of review, the relevant legal authorities, and a recommendation for the decision.

The other panel Judges may inquire about matters included in the record and may, of course, discuss the relevant facts and law. At the conclusion of the discussion, each JUdge is expected to say whether they agree with the recommendation and why or why not.

The purpose of the panel conference is to make an initial decision as to the ultimate ruling and decide who will write the first opinion to be circulated.

c. Opinion Preparation and Circulation

Once a panel decision is made, the panel makes a formal writing assignment. In most case, at least one other Judge will agree ith the recommendation of the assigned Judge. The assigned Judge will then be designated as the opinion-writer and is expected to prepare and circulate a draft opinion to the other panel Judges.

If the assigned Judge is not in the majority, the Chief Judge or Presiding Judge will assign an opinion-writer from the JUdges who are in the majority. The newly designated opinion-writer will then be expected to prepare and circulate a draft opinion to the other panel Judges.

A panel opinion is prepared and circulated to all panel Judges for a vote. The vote may be to concur, specially concur, concur in result only, concur in part in result, dissent, or concur in part/dissent in part. If a panel Judge’s decision is anything other than to concur, the Judge is expected to write a separate opinion to address the reasons that they do not concur with the panel opinion.

Each panel Judge may write a separate opinion or ask that the case may be considered by the Court’s en banc conference. Each panel Judge may also offer suggestions or modifications to the opinion-writer.

d. Separate Opinions

At any time during the panel conference or circulation of opinions, a panel Judge may indicate the intent to write a separate opinion. The Judge is then expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the original opinion-writer to allow for revisions. The writing judges then finalize their opinions.

e. Re-circulation

The majority and separate opinions are then circulated to the panel for a vote. If the majority does not change, the final panel opinions will then circulate to non-panel Judges. If the majority changes, the author of the separate opinion becomes the opinion-writer and must promptly produce a panel majority opinion. (This is commonly referred to as a “flipped” opinion.) The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the final panel opinion.

Next: Full Court Consideration Through Petition for Cert.

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