Imagine that your client has been sued for damages in federal court. In a motion for summary judgment, you assert what you believe to be a valid and compelling legal defense, such as the plaintiff’s failure to exhaust administrative remedies. There are no facts in dispute regarding the defense—it presents a purely legal question for the judge to resolve before any trial takes place. Yet the judge denies your dispositive motion, and so you proceed to a jury trial, where your client is hit with a substantial verdict. As you consider post-trial motions, you may wonder: must you re-brief the purely legal defense in a Rule 50 motion — even though the judge previously denied it on summary judgment — in order to preserve that issue for appeal?Continue Reading U.S. Supreme Court agrees to resolve Dupree circuit split

In mid-December 2022, Larry Ebner, the well-known appellate advocate behind Capital Appellate Advocacy in Washington, D.C., published an op-ed at Law360 titled Federal Courts Should Follow Supreme Court’s Amicus Stance. In this op-ed, Ebner noted that the U.S. Supreme Court had announced revisions to its rules, effective Jan. 1, 2023, that eliminate the requirement for amici curiae to obtain the parties’ consent, or the court’s permission, to file their amicus briefs. Ebner went on to argue that the corresponding rules for the federal circuit courts (see FRAP 29) should similarly be amended to eliminate the consent requirement for amicus briefs.Continue Reading Changing rules to eliminate consent requirements for amicus briefs – how far will they go?