Helping Trial Lawyers Navigate the Appellate System

No More Telephone Briefing Extensions in the Fifth Circuit?

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In this post from several years ago, I expressed how pleased I was with the informal procedure by which the United States Court of Appeals for the Fifth Circuit accepted and granted routine briefing extension requests. At the time, the Court allowed the clerk’s office to approve short, unopposed extensions over the telephone and had dispensed with any requirement that counsel follow up with a confirmation letter.

Recently, I heard that the Fifth Circuit had changed this practice and no longer accepts extension requests by telephone. Needing an extension in a case I’m working on, I decided to see for myself.

The first thing I did was check the Fifth Circuit’s local rules. The versions linked on the Court’s website (here and here) say they are current as of May 15, 2015 (when the Court amended Rule 34.7 to bring it in line with its updated electronic device policy). Nevertheless, the applicable rule still states:

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The case management clerk I spoke to confirmed that the Court’s procedures have changed. The clerk explained that the Court has tightened up on briefing extensions and is now generally reserving telephone extensions for pro se parties without electronic-filing capabilities. Under the new procedure for obtaining a Level 1 extension, parties should e-file a written request no less than seven days before the original due date (a letter was sufficient in my case) and classify it as “ECF Attorney Extension Request” under “Briefs” (as below) when doing so. Inside of seven days, a formal motion—classified in ECF as “Motion, Response, Reply”—will be required.

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During my conversation with the clerk, I pointed out the inconsistency between the new policy and the published rule and that parties rely on how courts describe their own procedures when seeking relief. The clerk agreed to pass my concerns up the supervisory chain.

I will continue to monitor this situation and will report back if the Fifth Circuit announces an official rule change. In the meantime, unless you’re a pro se litigant, don’t count on obtaining a Level 1 briefing extension by telephone.

12/09/15 Update: The Clerk’s Office FAQs currently linked on the Court’s homepage—apparently last revised in March 2015—likewise do not reflect the change.

Screenshot 2015-12-09 08.15.34  Header image courtesy of Flickr by Timitrius.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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