How Should a Federal Appellate Court Decide Whether an Appeal Should Be Orally Argued?

Howard J. Bashman

Special to Law.com

September 10, 2007

Howard J. Bashman

Related: Bashman Archive

The crush of an incredibly burdensome caseload has made oral argument a scarce commodity in many federal appellate courts. Throughout most of the country, long gone are the days where federal appellate courts will schedule each and every appeal in which both sides are represented by counsel for oral argument unless the attorneys convince the court that oral argument is unnecessary.

Today, only a minority of the federal appellate courts leave it up to the lawyers to decide whether an appeal should be argued. The New York City-based 2nd Circuit recently promulgated a revised rule that requires attorneys to affirmatively request oral argument to receive it. And the Cincinnati-based 6th Circuit also remains in the habit of giving oral argument when lawyers request it, regardless of whether the judges assigned to a case anticipate that oral argument will be useful.

By contrast, the Philadelphia-based 3rd Circuit employs what I believe to be the best system for deciding whether an appeal in which the parties are represented by counsel should be argued. In the 3rd Circuit, after cases are fully briefed, they are assigned to the next available oral argument panel. Thereafter, the three judges on the panel independently decide in which cases they desire oral argument. Any case in which at least one judge desires oral argument will be argued.

I prefer the 3rd Circuit's approach because the three judges assigned to decide an appeal on the merits are the same ones who will determine whether the appeal deserves oral argument. If those three judges unanimously feel that oral argument would not be of assistance, they can then proceed to decide the case themselves based on the briefs and appellate record alone. But if one or more of them concludes otherwise, the judges who make that decision will personally obtain the benefit of oral argument by ultimately participating in the oral argument and the decision of the case.

At least two federal appellate courts' method of deciding whether an appeal will be orally argued strikes me as nonsensical. Both the New Orleans-based 5th Circuit and the Atlanta-based 11th Circuit initially assign appeals to three-judge screening panels. That system works as follows: The case file arrives in the office of one of the three panel members. That judge then assses whether oral argument should be held.

If the judge decides in favor of oral argument, the case goes back to the clerk's office, where it is assigned to an oral argument panel that may or may not include the judge who sent the case for argument. If that judge decides against oral argument, he or she is responsible for drafting an opinion that disposes of the appeal on the merits.

Once the proposed opinion is completed, the first judge then sends the case file and proposed opinion to a second screening panel judge, who reviews the file and the proposed opinion and decides either to join the opinion or to send the case to oral argument. If the case is sent to oral argument, the first judge's proposed opinion was essentially for naught.

If the second judge agrees with the first judge's proposed opinion, the case file is then sent to the third and final judge on the panel, who then engages in essentially the same process as the second judge. The third judge also has the unilateral ability to send the case for argument, thereby preventing the proposed opinion from issuing. Alternatively, the third judge can decide to join in the proposed opinion, in which event it will issue as the court's decision in a non-argued case.

If the third judge to receive the file decides that oral argument should occur, the case is then returned to the clerk's office for assignment to a randomly selected argument panel, which may or may not contain any of the three judges on the original screening panel. This means it's at least theoretically possible that the two judges who thought the case did not merit oral argument would be on the oral argument panel, while the one judge who thought the case merited oral argument does not end up on the panel.

The approach that the 5th and 11th Circuits take to deciding whether a case should be argued thus has the potential to result in the wasteful expenditure of court resources. Because the 5th and 11th Circuits are two of the busiest federal appellate courts based on caseload per judge, one might think these courts would use a more efficient method of deciding whether a case should be selected for oral argument.

I once heard an appellate judge serving on a state court where oral argument is given as of right to the parties assert that having judges decide whether cases merited oral argument would take more time than allowing oral argument in all cases. I remain unconvinced by that claim. An appellate judge expends a great deal of effort in properly preparing a case for oral argument -- and I have seen far too many cases in which attorneys clearly waste three judges' time by inflicting oral argument on the court in cases where the judges, had it been up to them, would not have elected for oral argument. In such instances, the time the judges spent preparing for and being subjected to unnecessary oral arguments was time that the judges could have spent actually deciding cases and doing other work.

As an advocate, I relish every available opportunity to persuade the judges assigned to my clients' cases of the correctness of my clients' positions on appeal, so I am naturally going to advise my clients to elect oral argument in cases where doing so strikes me as potentially beneficial before courts where oral argument remains available at the parties' request. But, apart from my role as an advocate, I am also an individual who wishes that appellate courts would operate as efficiently and justly as possible. In that capacity, I believe that other federal appellate courts should consider adopting the 3rd Circuit's method of deciding whether a case merits oral argument. The decision of whether a case should be argued or not is best left to the three judges who are assigned to decide the case on its merits, instead of leaving that decision to other judges or the parties themselves.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.