Joint Submissions

Joint submissions include both joint statements of facts624 _{and joint stipulations.}625

Parties typically submit the former in addition to merits briefs, to memorialize the factual background to an appeal in a single document authored by both sides.626 _{The latter replace}

dueling merits briefs. The parties write and file a single document containing both of their arguments.

Several rationales ostensibly explain these departures from ordinary adversarial procedure. Judges in the Central District of California tired of the two sides failing to engage directly with each other’s arguments.627 _{To remedy this problem, about half of the magistrate}

judges in the district require the parties to go back-and-forth in the same document. These

622 _{OGC Lawyer 15 & OGC Lawyer 25 at 2.} 623 _{OGC Lawyer 15 & OGC Lawyer 25 at 2.}

624 _{E.g., Briefing Schedule, ________ v. Colvin, N.D. Iowa, Oct. 15, 2015; Briefing Schedule and Format Order,}

Dillon v. Colvin, Civ. No. 15-5034, D.S.D., July 10, 2015.

625 _{E.g., Case Management Order, _______ v. Astrue, Civ. No. 11-424, C.D. Cal., Mar. 15, 2011, at 4.} 626 _{E.g., D.N.H. Local R. 9.1(b)-(e).}

627 _{OGC Lawyer 28 at 6; Claimant Representative 8 at 5.}

judges’ orders go so far as to dictate a format that generates a sort of point-counterpoint engagement.628 _{Presumably districts and judges require joint statements of facts for the same}

reason. Also, as one claimant representative told us, the requirement that the parties confer on a joint statement of facts before merits briefing, or at least before the agency files its brief, is thought to produce earlier RVRs.629

Perhaps no practice attracted as much criticism in our interviews as these joint submissions.630 _{Even the sole claimant representative who expressed support for the}

requirement admitted that colleagues in the plaintiff’s bar either dislike it, or they saddle the agency with inconvenience and burden by failing to follow rules for these documents.631 _These

submissions, which an OGC lawyer described as neither “neither joint nor stipulated,”632 _are

problematic for several reasons. First, they require a “remarkably cumbersome process.”633 _The

parties must coordinate on a number of issues, including how many pages each side gets,634 _who

files what exhibits, and even which merits arguments are raised.635 _{In a high volume litigation}

context, this mandated cooperation adds a layer of inefficiency that busy attorneys can ill afford.

628 _{A typical order requires the following format:}

I. Issue No. 1

A. Plaintiff’s Contentions Regarding Issue No. 1

B. The Commissioner’s Contentions Regarding Issue No. 1 C. Plaintiff’s Reply Regarding Issue No. 1.

See, e.g., Case Management Order, _______ v. Astrue, Civ. No. 11-424, C.D. Cal., Mar. 15, 2011, at 7.

629 _{Claimant Representative 10 at 2.}

630 _{E.g., OGC Lawyer 14 at 3; OGC Lawyer 9 at 4; OGC Lawyer 7 at 3; Claimant Representative 10 at 2; OGC}

Lawyer 12 at 3.

631 _{Claimant Representative 8 at 5.} 632 _{OGC Lawyer 29 at 5.}

633 _{OGC Lawyer 15 & OGC Lawyer 25 at 1.}

634 _{An OGC lawyer complained to us of claimants writing 30-page drafts in jurisdictions where the documents}

cannot exceed 40 pages, thus leaving OGC only 10 pages. OGC Lawyer 14 at 3. Another lawyer described bloated, 80-page drafts arriving in their inboxes, effectively requiring them to join a document that will all but surely anger the judge. OGC Lawyer 15 & OGC Lawyer 25 at 7.

635 _{An OGC lawyer complained that the joint submission model makes it difficult affirmatively to raise dispositive}

issues that plaintiffs understandably do not mention themselves. OGC Lawyer 15 & OGC Lawyer 25 at 3. Cf. Claimant Representative 8 at 5 (conceding that the agency faces this problem).

A claimant representative described joint submissions as “royal waste of time,” and she “can’t stand working on them.”636

Second, the joint submission process effectively outsources the unpleasant job of

enforcing deadlines to the lawyers.637 _{A scheduling order might specify the dates on which each}

version of the draft might be exchanged, but also provide that nothing should be filed until the final submission is ready. A lawyer who misses a deadline is supposed to request an extension, to allow the entire briefing schedule to reset. But he sometimes fails to do so, a lapse surely encouraged at least in part by the fact that the judge remains in the dark until the submission finally gets filed. The other side has to hound her adversary to request the extension, lest her time to respond get shortened.638 _{One can readily imagine the reluctance of a lawyer to bring the}

deadline issue to the court’s attention, worried that doing so will irritate a judge impatient with such tedious housekeeping matters.

The joint submission process may indeed force the parties to engage more directly with each other’s argument. There is no evidence, however, that they prompt more or earlier RVRs.639 _{Moreover, other vehicles, namely pre-motion letters, can accomplish this objective}

more efficiently.

District courts require joint submissions of various sorts in other litigation settings. But rarely do the parties actually litigate the merits of their case through a joint submission. A number of districts require the parties to submit statements of fact at summary judgment, to identify those that are disputed and undisputed. These rules have a certain logic; summary judgment requires the identification of undisputed facts from a morass of discovery materials.

636 _{Claimant Representative 10 at 2.} 637 _{OGC Lawyer 28 at 6.}

638 _{OGC Lawyer 15 & OGC Lawyer 25 at 3.}

639 _{OGC Lawyer 29 at 5; Claimant Representative 10 at 2.}

But social security litigation involves a closed, already created record. It is revealing that no court of appeals finds something like a joint statement of facts necessary to navigate a record.640