First, the amendments fixed the ''Time Trap'' of which appellate practitioners have long been warned to beware. For years, the rule was that a Notice of Appeal was premature and a ''nullity'' if it was filed while any of certain motions-under Federal Rules of Civil Procedure 50(b) (for ''judgment as a matter of law''), 52(b) (to amend or make additional findings), 59(a)-(d) (for a new trial), and/or 59(e) (to alter or amend judgment)-were still pending. Once the trial court issued its order denying the motion(s), if the appellant's attorney did not file a brand new Notice of Appeal within 30 days, the appeal was lost forever. This trap was particularly dangerous for attorneys used to practicing under the Texas Rules of Appellate Procedure, in which a premature notice of appeal is treated as timely when the equivalent post-judgment rulings are entered.
Now, the federal rulewriters have made the federal practice a little more like that in the state courts. Under the amended FRAP 4(a)(4), a notice of appeal filed before the disposition of one of the motions listed above is still ''ineffective,'' but instead of being a ''nullity'' it is held in abeyance until the trial judge's ruling on the post-trial motion(s) causes it to ''ripen'' into an effective notice. See, Burt v. Ware, 14 F.3d 256 (5th Cir. 1994).
Next, the amended rules alleviate a related problem-the difficulty in distinguishing between a Rule 59(e) post-trial motion (to ''alter or amend the judgment''), which must be filed within 10 days of the final judgment and which tolls the time for filing an appeal, and a Rule 60 motion (for ''relief from judgment''), which can be filed more than 10 days after the judgment and which does not toll the time for appeal. To make matters worse, the Fifth Circuit has said that even if a motion is entitled a Rule 59(e) motion or motion to alter or amend judgment, the Court will treat it as a Rule 60 motion if that's what it thinks the motion really is. A Rule 60 motion is one ''seeking to correct purely clerical errors and mistakes.'' Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir. 1986) (en banc), cert. denied, 479 U.S. 930, 107 S.Ct. 398 (1986). In practice, it is not always easy to tell whether the motion's asserted grounds for altering the judgment are ''purely clerical'' or something else. But even under the amended FRAP 4(a)(4), it could make a difference in determining whether the appeal is ''effective'' or not.
So, to solve the dilemma, new FRAP 4(a) (4)(F) provides that if the Rule 60 motion is filed within 10 days after the entry of judgment it tolls the time for appeal, just like a Rule 59(e) motion; if it is filed more than 10 days after the judgment, it does not toll the appeal deadline. Thus, the suspension of the 30 days to file a notice of appeal now depends not on whether the post-judgment motion is treated as falling under Rule 59 or Rule 60, but simply on whether it was filed within or after 10 days.
Yet another snare removed by the amended rules is the so-called ''Torres Trap,'' named after Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405 (1988). Under former FRAP 3, as interpreted in Torres, a notice of appeal had to specifically identify each separate appellant. If it merely said ''et al.,'' only the first, named, appellant's appeal was preserved (unless, in the Fifth Circuit, there were only two possible appellants). Under the new FRAP 3(c), the use of ''et al.'' or a generic term such as ''all defendants'' is specifically approved, and ''[a]n appeal will not be dismissed . . . for failure to name a party whose intent to appeal is otherwise clear from the notice.'' See, Ford v. Elsbury, 32 F.3d 931, 933-934 (5th Cir. 1994) (interpreting the new rule).
To compensate for the fact that the notice of appeal no longer has to name every appellant, FRAP 12(b) now has a new requirement. Within 10 days of filing a notice of appeal, an attorney representing more than one appellant must file a ''Representation Statement,'' naming each party he/she represents in the appeal. To effectuate this requirement, the Fifth Circuit utilizes its longstanding Notice of Appearance of Counsel form. See 5th Cir. Local Rule 12 (as amended). That form now must be filed within ten days of the notice of appeal and must separately list every appellant the attorney represents in the appeal.
A final change worth noting concerns the appellate brief. What was long recommended to practitioners as sound advice is now a requirement. The last sentence of FRAP 28 (a)(5), added by the amendments, requires that the Argument section of the brief must now contain ''a concise statement of the standard of review'' for each issue. The statement may either be included in the discussion of the issue or be under a separate heading preceding argument on the issue. New Fifth Circuit Local Rule 28.2.6 provides specific examples.
Like many components of government at all levels nowadays, the Fifth Circuit has recently experienced staff reductions due to budgetary cutbacks. To some extent, these may be offset by more streamlined, computerized procedures, which the court seems to be still in the process of fully implementing. Nevertheless, practitioners will probably notice some differences in their interactions with court personnel.
One notable change, which may or may not be related to resource constraints, is that Fifth Circuit clerks now have much less discretion to grant extensions of time. An initial twenty-one day extension by a clerk, of the due date for a brief, for example, was once considered ''automatic'' upon telephone request. The clerk's office still has that authority under Fifth Circuit Local Rule 27.1, but in practice it can no longer be counted on as ''automatic.'' The practitioner should be prepared to offer specific justification. The Court is also showing increasing reluctance to postpone oral argument dates (even as the trend continues for fewer cases to be set for oral argument).
Practitioners should also note that the Court seems to have become even more strict in its insistence on adherence to the briefing rules. For example, FRAP 28(a)(5) requires specific record citations. In Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994), the Court refused to consider evidence opposing summary judgment which the appellant specifically cited for the first time in the reply brief.