Appellate Procedure — Trial Judge’s Ability to be Heard

Last week, Judge Lewis A. Kaplan of the United States District Court for the Southern District of New York filed in the Second Circuit a response to the mandamus petition of KPMG challenging the District Court’s order refusing to dismiss the complaint filed by former KPMG partners seeking advancement of costs to defend a highly publicized criminal prosecution. United States v. Stein, 2007 U.S. Dist. LEXIS 1825 (S.D.N.Y. Jan. 8, 2007). This response was invited by the Second Circuit pursuant to Fed.R.App.P. 21(b)(4), which contemplates that a Court of Appeals may invite a District Judge to respond in a mandamus setting. No doubt, Judge Kaplan’s erudite response will be of assistance to the Court of Appeals. There are many settings in which Rule 21(b)(4) has no application, however, and yet the Court of Appeals may benefit from the views of the District Judge, who may also have a bona fide interest in being heard. For example, an appeal from a sanctions award that does not include attorneys' fees may result in appellate proceedings lacking two litigating adversaries because the prevailing party below has no monetary or other incentive to incur the cost of an appeal from which it will take nothing. Often, the District Court’s decision below will speak for itself. But sometimes the appellant will raise new issues for the first time on appeal, even including issues of first impression. There is caselaw authority for the Court of Appeals to appoint ‛counsel as amicus curiae to support the decision of the district court.“ United States v. Chagra, 701 F.2d 354, 361 & n.16 (5th Cir. 1983). It would be a salutary change to the Federal Rule of Appellate Procedure if this discretionary authority were codified.

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