Howard J. Bashman
Howard J. Bashman ()

Upon Further Review

Two months ago, the Philadelphia-based U.S. Court of Appeals for the Third Circuit became just the second federal appellate court to begin posting video of its oral arguments online. The San Francisco-based Ninth Circuit was the ­trailblazer when it comes to online oral argument video, and that court now streams live on YouTube the oral arguments of nearly all of its cases. Moreover, if you miss the live-stream of a Ninth Circuit argument, you can replay the argument on demand on YouTube anytime thereafter.

The Third Circuit, by contrast, decided to take a markedly different tack when it comes to posting oral argument video online. Adopting a set of procedures that even the most hardened bureaucrat would find inspirational, the Third Circuit solicits the views of counsel for the opposing parties both before and after the oral argument concerning whether the video of an oral argument should be posted online. Even then, the Third Circuit will only post an oral argument video online if “the panel ­unanimously agrees that an argument presents issues of significant interest to the public, the bar, or the academic community.” Thus, when it comes to posting the video of an oral argument, majority does not rule, and even one judge on the panel can veto the idea if he wishes.

As a result, it is perhaps not surprising that in the two months since the Third Circuit adopted its rule change allowing the posting of oral argument video online, as of this moment the court has only posted the video of two oral arguments. The technology that promises to be a wonderful teaching and civics tool for lawyers and the general public is off to the softest of imaginable launches. Instead of creating unnecessary extra work for the lawyers and judges on any given argued case, the Third Circuit should change its policy to provide that the video of all oral arguments will be posted online unless the majority of a panel, either on its own motion or at the request of counsel for good cause shown, decides against it.

The Ninth Circuit’s experience with YouTube—providing for the live-streaming of oral argument video—clearly demonstrates the value of allowing the public wherever located to access the video of appellate oral arguments in a free and easy manner. If the Third Circuit had been the first federal appellate court to experiment with oral argument video online, perhaps its remarkably cautious approach would have been justified. But as the second federal appellate court to opt for posting oral argument video online, the Third Circuit’s approach seems ­antiquated and unnecessarily restrictive.

Of course, one cannot remark on the paucity of oral argument video that the Third Circuit has elected to post online without being reminded of that court’s notable ­reluctance to entertain the oral argument of appeals as a general matter. The most recent statistics that the Federal Judicial Center has released for the year ending Sept. 30, 2016, show that the Third Circuit heard oral argument in only 9.3 percent of the cases decided on the merits (as opposed to cases dismissed for procedural reasons). Of the 12 regional circuits—a number that includes the D.C. Circuit, but excludes the Federal Circuit—the Third Circuit during that period ranked 10th on the list of the federal appellate courts most likely to schedule a case for oral argument. Only the Fourth and Eleventh Circuits heard oral argument less frequently than the Third Circuit.

The category of case most likely to receive oral argument in the Third Circuit, not surprisingly, is the private civil appeal (an appeal in a civil case between two or more private parties), where the likelihood of oral argument in the year ending Sept. 30, 2016, was approximately 24 percent. By contrast, in the Eleventh Circuit, in which only 7.7 percent of all cases are orally argued, private civil appeals have a 34 percent chance of being orally argued according to these same statistics.

As regular readers of my column will recall, I favor a system, such as the Third Circuit’s, whereby the judges rather than the lawyers for the parties decide whether any given appeal will be orally argued. Moreover, I do not believe it would be beneficial for the judges of the Third Circuit to waste their collective time sitting through oral arguments that are unlikely to provide any assistance whatsoever to the ­decision-making process.

Nevertheless, I do believe it would be beneficial for the Third Circuit’s judges to relax their currently very stringent standards for deciding whether an appeal merits oral argument in recognition of the fact that frequently oral argument will make an ­appeal easier, rather than more difficult, to decide. To begin with, oral argument can serve to streamline the issues that the parties have presented for decision. And oral argument increases the likelihood that the parties will recognize that their positions have been heard and understood, thereby softening the blow to the party that ends up on the losing end of the case.

How can an appellate court that has been reluctant to grant oral argument over a sustained period of time begin to reverse that trend? The easiest way is for the judges of the court to consciously decide that in cases presenting a close call concerning whether oral argument is merited, they will resolve that decision in favor of oral argument rather than against it.

Moreover, spending time together during the oral argument process is likely to increase collegiality among the Third Circuit’s judges, as they will have more opportunity to get to know one another, to exchange views in person on the merits of argued cases, and to better appreciate their colleagues’ views on a larger range of ­issues. This could be especially important in the months and years ahead as the composition of the court is likely to change as existing vacancies are filled.

But of all the arguments for and against increasing oral argument at the Third Circuit, the one that strikes me as the most persuasive is that increasing the number of argued cases is likely to result in better, more sound decisions. Two of the federal appellate courts that are considered the busiest and most overworked—the Fifth and the Ninth Circuits—hear oral argument in 17 and 23 percent, respectively, of all cases decided on the merits.

For the Third Circuit to hear oral argument, by comparison, in only 9.3 percent of cases decided on the merits seems far too restrictive. And maybe once the Third Circuit begins hearing oral argument in more cases, it will find a way to put more videos of those oral arguments online, so that the public may benefit from the ­availability of that wonderful 
resource.

Copyright The Legal Intelligencer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
 

Upon Further Review

Two months ago, the Philadelphia-based U.S. Court of Appeals for the Third Circuit became just the second federal appellate court to begin posting video of its oral arguments online. The San Francisco-based Ninth Circuit was the ­trailblazer when it comes to online oral argument video, and that court now streams live on YouTube the oral arguments of nearly all of its cases. Moreover, if you miss the live-stream of a Ninth Circuit argument, you can replay the argument on demand on YouTube anytime thereafter.

The Third Circuit, by contrast, decided to take a markedly different tack when it comes to posting oral argument video online. Adopting a set of procedures that even the most hardened bureaucrat would find inspirational, the Third Circuit solicits the views of counsel for the opposing parties both before and after the oral argument concerning whether the video of an oral argument should be posted online. Even then, the Third Circuit will only post an oral argument video online if “the panel ­unanimously agrees that an argument presents issues of significant interest to the public, the bar, or the academic community.” Thus, when it comes to posting the video of an oral argument, majority does not rule, and even one judge on the panel can veto the idea if he wishes.

As a result, it is perhaps not surprising that in the two months since the Third Circuit adopted its rule change allowing the posting of oral argument video online, as of this moment the court has only posted the video of two oral arguments. The technology that promises to be a wonderful teaching and civics tool for lawyers and the general public is off to the softest of imaginable launches. Instead of creating unnecessary extra work for the lawyers and judges on any given argued case, the Third Circuit should change its policy to provide that the video of all oral arguments will be posted online unless the majority of a panel, either on its own motion or at the request of counsel for good cause shown, decides against it.

The Ninth Circuit’s experience with YouTube—providing for the live-streaming of oral argument video—clearly demonstrates the value of allowing the public wherever located to access the video of appellate oral arguments in a free and easy manner. If the Third Circuit had been the first federal appellate court to experiment with oral argument video online, perhaps its remarkably cautious approach would have been justified. But as the second federal appellate court to opt for posting oral argument video online, the Third Circuit’s approach seems ­antiquated and unnecessarily restrictive.

Of course, one cannot remark on the paucity of oral argument video that the Third Circuit has elected to post online without being reminded of that court’s notable ­reluctance to entertain the oral argument of appeals as a general matter. The most recent statistics that the Federal Judicial Center has released for the year ending Sept. 30, 2016, show that the Third Circuit heard oral argument in only 9.3 percent of the cases decided on the merits (as opposed to cases dismissed for procedural reasons). Of the 12 regional circuits—a number that includes the D.C. Circuit, but excludes the Federal Circuit—the Third Circuit during that period ranked 10th on the list of the federal appellate courts most likely to schedule a case for oral argument. Only the Fourth and Eleventh Circuits heard oral argument less frequently than the Third Circuit.

The category of case most likely to receive oral argument in the Third Circuit, not surprisingly, is the private civil appeal (an appeal in a civil case between two or more private parties), where the likelihood of oral argument in the year ending Sept. 30, 2016, was approximately 24 percent. By contrast, in the Eleventh Circuit, in which only 7.7 percent of all cases are orally argued, private civil appeals have a 34 percent chance of being orally argued according to these same statistics.

As regular readers of my column will recall, I favor a system, such as the Third Circuit’s, whereby the judges rather than the lawyers for the parties decide whether any given appeal will be orally argued. Moreover, I do not believe it would be beneficial for the judges of the Third Circuit to waste their collective time sitting through oral arguments that are unlikely to provide any assistance whatsoever to the ­decision-making process.

Nevertheless, I do believe it would be beneficial for the Third Circuit’s judges to relax their currently very stringent standards for deciding whether an appeal merits oral argument in recognition of the fact that frequently oral argument will make an ­appeal easier, rather than more difficult, to decide. To begin with, oral argument can serve to streamline the issues that the parties have presented for decision. And oral argument increases the likelihood that the parties will recognize that their positions have been heard and understood, thereby softening the blow to the party that ends up on the losing end of the case.

How can an appellate court that has been reluctant to grant oral argument over a sustained period of time begin to reverse that trend? The easiest way is for the judges of the court to consciously decide that in cases presenting a close call concerning whether oral argument is merited, they will resolve that decision in favor of oral argument rather than against it.

Moreover, spending time together during the oral argument process is likely to increase collegiality among the Third Circuit’s judges, as they will have more opportunity to get to know one another, to exchange views in person on the merits of argued cases, and to better appreciate their colleagues’ views on a larger range of ­issues. This could be especially important in the months and years ahead as the composition of the court is likely to change as existing vacancies are filled.

But of all the arguments for and against increasing oral argument at the Third Circuit, the one that strikes me as the most persuasive is that increasing the number of argued cases is likely to result in better, more sound decisions. Two of the federal appellate courts that are considered the busiest and most overworked—the Fifth and the Ninth Circuits—hear oral argument in 17 and 23 percent, respectively, of all cases decided on the merits.

For the Third Circuit to hear oral argument, by comparison, in only 9.3 percent of cases decided on the merits seems far too restrictive. And maybe once the Third Circuit begins hearing oral argument in more cases, it will find a way to put more videos of those oral arguments online, so that the public may benefit from the ­availability of that wonderful 
resource.

Copyright The Legal Intelligencer. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.