The federal appeals court for the Southeast has started posting audio recordings of oral arguments on its website.
The move, prompted by a request from a nonprofit that disseminates legal information, brings the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit up to date with all but one of the federal circuit courts around the country. Only the Denver-based Tenth Circuit does not make argument recordings available on its website, while on the other end of the spectrum, the San Francisco-based Ninth Circuit livestreams video of many of its arguments.
“Access to these recordings is a blessing and a curse,” said Laurie Webb Daniel, who heads the appellate practice for Holland & Knight. “Appellate lawyers always second-guess themselves,” she added. “In the old days, that nagging feeling would subside fairly quickly. But now, you can play the oral argument over and over again and, as a perfectionist, you always will find ways to improve your performance.”
On the other hand, Daniel said, “There are those arguments where the judges just hammer the other side, and that is great fun to relive.”
More seriously, Daniel said oral arguments can help parties well beyond those involved in a particular case. She tracks arguments to assess how judges are weighing some issues, and in a trial she played a snippets of a Georgia Supreme Court argument to show the judge where the court was leaning on a particular matter.
“Although the tone of the oral argument is not always indicative of the court’s eventual ruling, more often than not it is,” Daniel said. “Probably the best reason for making these recordings available is that it helps parties assess their case for settlement purposes.”
Judge Adalberto Jordan, who heads the Eleventh Circuit’s rules committee, said a request by the nonprofit Free Law Project prompted the court’s decision to make the arguments available on the website.
“We thought it was a good idea,” Jordan said. The court considered putting recordings from past arguments online, but that would have been too costly, so the court started posting arguments from April 1 onward.
Like Daniel, Jordan said litigants beyond the parties in any argument may find the recordings useful. He suggested that in cases with similar issues “on parallel tracks,” lawyers could hear what judges were concerned about in one argument, which would help in preparation for the next argument.
Michael Lissner, executive director of the Free Law Project based in Berkeley, California, said his group was “thrilled” by the Eleventh Circuit’s move. “We anticipate adding these recordings to our website, CourtListener.com, soon.”
“Posting oral argument recordings in this way is a simple step that courts can take to make their proceedings more transparent and to engage the public in their work,” he said.
At the Tenth Circuit, Clerk of Court Betsy Shumaker said anyone can get access to recordings by filing a motion requesting one—an email is sufficient, she said—and news media frequently use that process.
Given the move by the Eleventh Circuit, “I wouldn’t be surprised if the court revisited the policy,” she added, but there are no plans to do so.