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2-5.000
APPELLATE STANDARDS FOR U.S. ATTORNEYS' OFFICES

2-5.110 Appellate Supervision
2-5.111 Preparation of Appellate Briefs
2-5.112 Review of Appellate Briefs
2-5.113 Preparation for Oral Argument
2-5.114 Appellate Training
2-5.115 Appellate Standards

2-5.110

Appellate Supervision

Every United States Attorney must designate an AUSA to supervise all criminal appellate matters, and the same or a different AUSA to supervise all civil appellate matters. Such an AUSA appellate chief must have the responsibility, authority, and time to supervise and coordinate appellate brief-writing, appellate argument, and other appellate matters; review and report adverse decisions; review and forward government appeal recommendations; and serve as the point of contact with the Main Justice appellate sections and the Solicitor General's Office on appellate-related matters for his or her area of responsibility. It is recommended but not required that the supervisory appellate AUSA be publicly designated as the "appellate chief."

[updated September 2013]

2-5.111

Preparation of Appellate Briefs

For appeals handled by the USAOs, every appellate brief must be assigned to an AUSA or Special AUSA who is responsible for preparing a brief that best presents the government's position in the case. In every case, the AUSA or Special AUSA assigned to handle the appeal shall review opposing counsel's brief, the record, and all pertinent legal authority. It is strongly recommended that every appellate brief be drafted in its entirety by the assigned AUSA or Special AUSA unless a government attorney from one of the Department's litigating components takes a role in drafting the brief. If the United States Attorney permits the use of qualified paralegal specialists or law students to draft some appellate briefs, each brief or portion of a brief drafted by a paralegal specialist or law student must be subjected to rigorous review by the attorney who is responsible for preparing the brief, as well as by the responsible AUSA supervising appellate matters, an appellate AUSA, or another AUSA with significant appellate experience (the "brief reviewer").

[updated September 2013]

2-5.112

Review of Appellate Briefs

Before an appellate brief is filed in the court of appeals, the brief must be reviewed and edited by the AUSA supervising appellate matters, an appellate AUSA, or another AUSA with significant appellate experience.

[updated September 2013]

2-5.113

Preparation for Oral Argument

Every oral argument must be preceded by a discussion of the issues between the AUSA or Special AUSA arguing the case and, at a minimum, the responsible AUSA supervising appellate matters or the brief reviewer. Adding one or more attorneys to the discussion, and requiring the arguing attorney to answer questions as he or she would in the appellate court, is encouraged in all cases, and is required in the limited number of oral arguments involving: (a) an en banc court; (b) an affirmative government appeal; (c) an issue of unusual significance to the office or Department; (d) a claim of serious prosecutorial misconduct; or (e) the first appellate argument of an AUSA or Special AUSA.

[updated September 2013]

2-5.114

Appellate Training

AUSAs and Special AUSAs handling appeals should have sufficient training to ensure the proper handling of appellate work.

[new October 2010]

2-5.115

Appellate Standards

Commentary to these standards for the handling of appellate matters within the USAO are set forth in Appeals Resource Manual 2.

[new October 2010]