Why rely on a colleague's interpretation of a court rule or procedure when you can go to the original source?  Attorneys typically don't think of contacting a court's clerk's office to answer an appellate question.  Some attorneys shy away from the practice generally because they fear being accused of communicating with the court ex parte.  Others simply don't think of contacting a court to answer a procedural appellate question.  For whatever reason, you are missing out on a wealth of information and experience that court clerk's offices offer.

To be clear, we are not advocating that you contact a clerk's office for an interpretation of procedural or substantive law.  Rather, we are recommending that you direct your questions on court rules and procedures to a court clerk's office.  Court clerk's offices are an untapped resource. However, you won't benefit from calling a court clerk's office without a plan.  Like those of us in private practice, attorneys and staffers at court clerk's offices are busy.  Therefore, we provide the following suggestions to get the most out of your contact with a court's clerk's office.

1. Read the court's rules before calling the clerk's office.  Almost every appellate court's rules and procedures are accessible on the World Wide Web or West’s softbound volumes.  Don't call the clerk's office with a question that a read of the court's rules will answer.  If you still have a question about the rules, have them accessible when you call the clerk's office.  The clerk's staff will appreciate that you have already read the rule and will be better able to answer your question.  Also, you stand to get a more precise answer if you are able to direct the clerk's staff to the precise section of the rules that relates to your question.

2. Have your appeal's docket number, appellate number, or other identifying information ready before calling the clerk's office.  Most, if not all, clerk's offices have computer databases that track the incoming motions and appeals.  A good way to alienate a clerk's staffer from the start of the conversation is to fumble around to find your appeal's identifying information.

3. Look on the court's webpage for a listing of staff's contact information.  If the court provides a listing of particular offices for certain appellate questions, call the appropriate office.  Do not call the general number and hope for the best.  If you do, you increase the chances of being transferred numerous times to the incorrect office.

4. If you only have access to the court's general telephone number, identify your issue clearly at the beginning of the conversation.  For example, the first thing I usually state to a court's clerk's office is, "Good afternoon.  I have a question about creating a Record on Appeal on a civil appeal."  Identifying that the matter concerns a civil appeal is important where the court assigns different attorneys or staffers to civil or criminal appeals.  Also, some courts dedicate certain attorneys or staffers to certain sections of court procedure -- e.g., motions, records on appeal, motions, etc.

5. Some courts assign case managers to each appeal.  If your appeal has a case manager, call him or her first with the question.  If he or she is unable to answer the question, he or she will refer you to the appropriate person.  If you attempt to skip that step, you'll inevitably get transferred to your case manager.

6. If you get an attorney's or staffer's voicemail, be detailed yet concise.  Identify who you are, your appeal, whom you represent, your telephone number (speak slowly), and your question.  Provide a short synopsis of your question on the voicemail.  For example, "I have a question about a motion to dismiss an appeal."  The clearer the message, the more apt the office will contact you back expeditiously.  

7. Sometimes court rules provide judicial remedies for issues that the court would prefer the parties handle without court intervention.  For example, appellate courts usually have a rule regarding motions to strike a record on appeal or appendix because certain documents are missing or omitted.  However, some courts prefer that a party forego motion practice and solve the issue by submitting a supplemental record on appeal or appendix or agreeing with the appellant that he or she will do so.  Before making these types of motions, you might want to call the court's clerk's office to learn the court's preferred method of resolving the issue.  Like trial courts, appellate courts are flooded with motions and other work.  If you can lighten the office's workload with the court's blessing, do so. 

8. Do not ask questions that seek legal advice.  The best way to end a conversation with a court's clerk's office is to ask those types of questions.  If you are unsure that the question straddles the line between asking for legal advice and simply asking about court procedure, preface the question by telling the attorney and staffer that you do not mean to delve into that realm and that you are only seeking an answer information on the court's rules and procedures.  Most often, the clerk will provide as much information as they can, but will not provide the ultimate answer.  For example, the court’s clerk’s office might confirm that the provisions of a rule or statute apply to the time to file a notice of appeal, but he or she won’t tell you the last day to file the document.

9. Do not discuss substantive details about your appeal with the court clerk’s office.  By doing so, you are putting that attorney or staffer in a position that blurs the line between answering a question about court procedure and engaging in ex parte communication.  This is another quick way to end a conversation with a court's clerk's office.

10. Do not disparage your adversary to the court's clerk's office.  Even if your question about court rules and procedure stems from your adversary's lack of professionalism, you should not share those unnecessary details with the clerk's office.  Frankly, the court does not care about those details and, again, discussing such information changes the conversation to more of an ex parte, adversarial conversation.

11. Make the call to the court clerk’s office yourself.  Do not delegate the task to a legal assistant, paralegal, or attorney who does not know the appeal or issue.  By calling the clerk’s office yourself rather than delegating the task, you avoid multiple calls to the court clerk’s office because there are gaps in information about the appeal or question.

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Categories: Appellate Advocacy

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