When a panel of the Sixth Circuit denied rehearing in a criminal case last month, Judge Moore issued a separate opinion, joined by Judge White, that highlights an important point for appellate advocacy. That is, regardless of how common some knowledge may be to the litigants at the trial level, the judges on appeal know only what the parties teach them about it.

What prompted Judge Moore’s somewhat unusual opinion was a petition for panel rehearing in a direct criminal appeal. In its merits decision before the rehearing petition, the panel held that the district court had erred in calculating the defendant-appellant’s advisory sentencing guidelines range; but it also held that the error was harmless because the district judge had stated explicitly during the sentencing hearing that he “would have imposed the same sentence under § 3553(a)” even “[i]f the guideline[s] calculation is determined to have been wrong.” In seeking panel rehearing, the defendant-appellant brought to the court’s attention “that the district court’s statement is part of its standard sentencing colloquy, even in cases where the parties do not object to the Sentencing Guidelines calculation.” United States v. Montgomery, 969 F.3d 582 (6th Cir. 2020) (opinion of Moore, J.). That point might have made a difference; Judge Moore failed to see “why we should give any weight to boiler-plate language designed to thwart a deserved resentencing.” Id. at 582. Unfortunately for the defendant-appellant, however, because the she “failed to raise this argument in her initial briefing and has brought it to our attention only on petition for panel rehearing, … her argument came too late and is inappropriate for our consideration at this stage.” Id. Panel rehearing was denied.

All of this brought to my mind the reality that in most cases, there’s a significant amount of relevant knowledge that almost everyone involved at the trial level knows—and that the appellate judges do not, unless the parties teach them. As applied in this case, I suspect that everyone at the defendant’s sentencing knew that this district judge routinely said that he would impose the same sentence, even if the guidelines calculation turned out to be incorrect. The prosecutor knew; defense counsel knew; the probation officer and staff from the clerk’s office knew, too. It was just common knowledge in this courtroom in Nashville (if my suspicion is right).

And that’s precisely why this tenet of appellate advocacy is both fundamental and difficult to keep consistently front of mind. One’s natural tendency is to assume that what’s common knowledge is… commonly known. The sort of thing that seems obvious and just “what everyone knows” may not even come into focus for an advocate until confronted with the equally obvious fact that, as it turns out, three appellate judges actually have no idea about it.

It’s therefore a necessary discipline for an appellate advocate to continually put herself in the place of three smart people who know nothing about the case other than what she can teach them in the briefs—and so to rigorously interrogate drafts to uncover assumptions and then fill in the gaps. A related proposition of appellate advocacy applies to those who are new to the case on appeal; they must ensure that they gain all of the unspoken knowledge about the case that’s not apparent on the face of the filed documents. Such knowledge remains necessary to understand what happened at the trial level and why, which is itself a prerequisite for framing arguments that put the litigant in the best light and position on appeal.

As a postscript, let me flag that I think Judge Moore’s opinion raises certain other issues of advocacy beyond the one discussed in this post. In particular, the opinion’s reference to transcripts in unrelated cases may pose a question regarding the ways that an advocate may permissibly educate the judges on an appellate court about common knowledge at the trial level. I’ll reserve that discussion for a future post.