Extensions of Time in the Fifth Circuit

By May 4, 2009March 8th, 2019Briefs, Fifth Circuit, Motions

Let’s be honest. Most state-court appellate practitioners find the Fifth Circuit a little byzantine. But one thing the Fifth Circuit does right is allow the clerk’s office to grant short unopposed briefing extensions—up to 30 days—over the telephone. The circuit court has even done away with the requirement that the requesting counsel send a confirmation letter to the clerk, with a copy to all parties.

Briefing extensions are pretty easy to come by in state appellate courts, but they’re not just a phone call away. I can think of one or two other federal rules that the Texas Supreme Court ought to consider emulating when considering future rules changes. For example, why not adopt some variation of FRAP 28.1 to deal with cross-appeals?

Join the discussion 4 Comments

  • Don Cruse says:

    What would make sense is a rule that consolidated the briefing on the merits for cross-appeals, once the Texas Supreme Court orders that briefing. (The Court could probably do that ad hoc through the order granting full briefing, in cases where it made sense.)
    I find the Texas Supreme Court clerk’s office to be very reasonable about extensions of time. But you’re right that there is a certain luxury to getting an extension granted over the phone.

  • I meant my suggestion to apply more at the intermediate level, where cross-appeals can really be an administrative (and expensive) headache. For example, if I have a one-issue cross appeal, technically I’m required to file an appellant’s brief with all the bells and whistles, and the parties wind up on parallel briefing tracks. In some cases, I’ve been able to avoid that by filing a motion asking for a briefing schedule approximating what FRAP 28.1 establishes. My point is that a uniform rule would be better than dealing with cross-appeals case by case.

  • Jeff N. says:

    Good suggestion, Todd. The federal practice under FRAP 28.1 is faster and less expensive, because it results in 4 briefs, not 6, filed over a shorter time frame. The Texas practice avoids the gamesmanship that can arise from parties racing to file the first notice of appeal, but I think most clients would appreciate the federal practice if they were aware of the difference.

  • Rich says:

    The Dallas Court of Appeals has a local rule (Local Rule 11) that is very similar to FRAP 28.1. We have had some success on a case-by-case basis in asking other Texas courts to order a similar briefing schedule in cross-appeal situations.