"Use of Previous Briefing" Form Now Required for All Claims

The AIDOAC committee wants the appellate projects to use the "Use of Previous Briefing" Sheet currently used by ADI in the Fourth District. A copy of this sheet is attached. It requires you to indicate whether you have used prior briefing "to a substantial extent" in preparing any of the arguments in the current case. It has generally been the requirement that counsel indicate such usage, but now AIDOAC wants this standard form used. (The form itself does not have to be used. However, if the form is not used, you should submit a memo with the same information.)

Please note that "substantial" usage does not include re-using passages on general principles such as standards of review or prejudice (the guidelines assume experienced attorneys will have access to and use such materials); rather, the substantial use refers to the actual argument itself. Similarly, re-use of some of the basic black-letter caselaw as a foundation for the argument would not usually rise to the level of substantial recycling of the prior brief.

However, where the argument itself is significantly taken from the prior briefing you should indicate that on the form, and explain roughly how much was prior briefing and how much was new. An example of an explanation that ADI noted when it introduced the form was: "Argument I: about 40% was copied from previous briefs I have written. That 40% required approximately 2.0 hours to adapt the argument to the facts and update the citations." Where appropriate you could also explain that a number of the cases discussed were new, as well as describe significant new factual material.

Please make copies of the enclosed "Use of Previous Briefing" sheet for your use. The claims will need to either have the Sheet or provide the information otherwise. You do not need to submit the sheet in a Wende case.

February 3, 2005

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