I argued recently at the 9th Circuit Court of Appeals in Pasadena. 15 minutes – thank you for coming. It was two fairly esoteric issues to anyone except bankruptcy courts and lawyers. Using collateral estoppel of state court rulings to establish willful and malicious injury. I was five minutes into my discussion with the panel before I realized that they were not experts in either and I really should have focused on that rather than jumping into the nuances of each. Has I realized the confusion, I could have made sure I was more ready to respond more clearly. And suddenly the 15 minutes is up. Opposing counsel had the same problem. He would try to answer the question asked and was politely rebuked saying he misunderstood the question.
I’m going to suggest to anyone who will listen at the 9th Circuit Judicial Conference in July that the 9th Circuit should post something similar to a tentative or at least a list of issues or questions – in advance – so that counsel arguing can have an idea of where to go with the argument and what to prepare for. I won’t hold my breath but maybe the law clerks could post the questions or issues.
Most Central District judges as you know prepare tentatives. Those are so helpful. Even when the tentative is “counsel should be prepared to discuss such and such.”