Oral argument is a time-honored appellate tradition. Some
advocates love this aspect of appellate practice. Some are anxious
being in the hot seat, that they might say something that loses
them the case.
Most appellate judges relish the opportunity to dig deeper into any
gaps that may have been left by the briefs. Some feel their time is
wasted by an advocate pursuing his or her own agenda, rather than
trying honestly to answer the court's questions and assist the
court in reaching the best decision in a case.
And, sometimes, circuit judges are correct in this regard.
Regardless, oral argument is a gift. It affords the advocate a
limited opportunity to speak directly to the decision-makers, to
find out what really troubles them about your, or your
opponent's, argument.
Some former appellate clerks, the authors included, will tell you
it is extremely difficult to win a poorly briefed case on oral
argument, yet, extremely easy to lose even a well-briefed case by
failing to address the court's concerns directly. Regardless of
your perspective, oral argument is a fixture of appellate
practice.
And in no circuit is it as taken for granted that oral argument
will be granted, as it is in the U.S. Court of Appeals for the Federal Circuit.
In most circuit courts of appeals and in the U.S. Supreme Court, not every case is argued.
The Federal Circuit, however, has maintained a unique tradition
since its inception. In virtually every case in which the party is
represented by counsel, the parties are provided an opportunity for
oral argument. This is not the common practice among the circuits.
Oral argument has come to be expected at the Federal Circuit; it is
viewed by the bar as almost an entitlement.
This is not the case for the other courts of appeals. Data
published by the Administrative Office of U.S. Courts establishes
that the Federal Circuit is alone among the U.S. courts of appeals
in liberally granting oral argument. Indeed, during the 12-month
period ending on Sept. 30, 2019, the regional courts of appeals
granted oral argument in only 20.4% of cases.1
The percentage of cases that were orally argued ranged from a high
of 45.1% for the U.S. Court of Appeals for the D.C. Circuit
(468 cases) to a low of 11% for the U.S. Court of Appeals for the Eleventh Circuit
(3,276 cases). Due to the manner in which the courts are budgeted
(the Federal Circuit and Court of International Trade are covered
under a separate budget from the Supreme Court, regional courts of
appeals and district courts), the Federal Circuit does not report
its data in the same manner as the balance of the courts of
appeals.
Throughout its existence, the Federal Circuit has generally granted
oral argument in appeals where the parties were represented by
counsel. Enter COVID-19. For the first time, this tradition is
changing. Not only has the form of oral argument changed - from
live, in-person advocacy to telephonic hearings - but the frequency
with which oral argument is granted is also changing.
Under the COVID-19 restrictions, it has dropped to a level
comparable to that of some of the other regional circuits. Will
oral argument continue to be granted? If so, how will it compare to
live, in-person argument? And will it affect the production of and
level of detail in the court's written opinions?
The court's original calendar for court week in May included 72
cases, including only 13 cases to be submitted on the briefs
(without oral argument). This represented 82% of the cases
submitted for decision after oral argument. Following the COVID-19
calendar corrections, only 26 cases were scheduled for oral
argument, or a total of about 38%. Each of these cases was argued
telephonically. No live, in-person oral arguments are scheduled to
be held, due to the COVID-19 restrictions.
The court's original calendar for court week in June included
66 cases, and only 13 to be submitted on the briefs without oral
argument. This represented 80% of the cases submitted for decision
after oral argument. Following the COVID-19 calendar corrections,
only 35 cases were scheduled for oral argument, or a total of about
49%. All of these cases are scheduled to be argued telephonically.
No live, in-person oral arguments are scheduled to be held, due to
the COVID-19 restrictions.
In view of the COVID-19 outbreak and the low rate of oral arguments
among other U.S. courts of appeals, it is reasonable to ask whether
the current Federal Circuit practice of limiting oral argument will
continue. If so, which cases will qualify, and which will not? And
does it matter?
As Law360 articles have illustrated, the telephonic oral argument
experience has generally been positive.2 But is it the
same? Although better than having no opportunity to directly
address the court's concerns, it is more austere than live,
in-person argument. Having argued multiple cases live, by video and
telephonically, we always appreciate any opportunity to address the
court directly on the issues being submitted.
But let's not kid ourselves. Although it is generally positive,
it is not the same. A live, in-person oral argument provides a rich
opportunity to communicate effectively, incorporating multiple
verbal and nonverbal cues, even in the context of a formal
appellate argument.
As we move to video and telephonic hearings, we retain a lower
resolution image or none at all. We retain the spoken word and tone
of voice, but we lose substantial depth without the facial
expressions, body language, and potential interactions between the
panelists. And, although this is nonetheless welcome, it is a
thinner, more spare way to communicate with the court.
Given this initial feedback, is it reasonable to expect that,
following a lifting of the COVID-19 restrictions, the court will
reduce the rate at which it grants oral argument? The court's
internal operating procedures afford substantial discretion on
whether to grant oral argument. Federal Circuit internal operating
procedure 7.2 provides in pertinent part:
Consistent with Fed. R. App. P. 34 and Fed. Cir. R. 34, it is the court's policy to allow oral argument unless:
(a) The appeal is frivolous;
or
(b) The dispositive issue or set of issues recently has been
authoritatively decided; or
(c) The facts and legal arguments are presented adequately in the
briefs and record, and the decisional process would not be aided
significantly by oral argument.3
The court's internal operating procedures would readily support
substantially reducing the grant of oral argument, as well as a
return to the pre-COVID-19 practice of liberally granting oral
argument.
Another potential impact is the court's approach to issuing
written opinions. Historically, the court has issued a written
opinion in cases submitted on the briefs, without oral argument.
For cases submitted following oral argument in which the outcome is
relatively clear and no new issues of law are raised, the court
typically issues a substantial number of affirmances under Federal
Circuit Rule 36 - an opinion, without explanation, simply affirming
the judgment below.
And, as the substantial majority of the court's decisions are
affirmances, this Rule 36 practice relieves the court of what might
otherwise be a substantial burden of written opinions.
Based on the court's pre-COVID-19 practice, a decrease in the
proportion of cases in which oral argument is granted may result in
a decrease in the number of Rule 36 affirmances and an increase in
the total number of written opinions (albeit shorter opinions).
Reducing the proportion of cases in which oral argument is granted
may actually increase the number of written opinions because the
number of cases submitted on the briefs increased. It may also
reduce, on average, the length and detail provided in these
opinions in unargued cases.
Any long-term change in the court's procedures may be affected
by how quickly and to what degree the COVID-19 pandemic recedes and
we return to normal business operations. If the country returns to
normal by this summer, which the authors anticipate is less than
likely even if governmental restrictions are lifted, the court may
quickly revert to its former practice. If the recovery is slower,
or a second or third wave of COVID-19 infections occur, the court
may have to continue a reduced oral argument calendar. If this
reduction persists, it may become the new normal.
We would regret this lost opportunity. Oral argument provides a
unique opportunity for the advocate to speak directly to his or her
decision-maker, to answer their questions, to resolve his or her
concerns, to reassure him or her that the rule of law he or she
espouses is a sound basis for decision. We will all - bench and bar
alike - lose something important in the judicial process without
it.
Footnotes
1 Table B-10, "U.S. Court of Appeals-Cases
Terminated on the Merits After Oral Arguments or Submission on
Briefs, by Circuit, During the 12-Month Period Ending September 30,
2019 ," available at https://www.uscourts.gov/sites/default/files/data_tables/jb_b10_0930.2019.pdf.
2 https://www.law360.com/articles/1263101/lessons-from-1st-attys-to-argue-at-the-fed-circ-by-phone;
see also https://www.law360.com/ip/articles/1268514/what-s-changing-at-the-remote-fed-circ-.
3 U.S. Court of Appeals for the Federal Circuit Internal
Operating Procedure 7.2.
Originally published by Law 360
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