Upon Further Review
On Wednesday, I will have the pleasure of orally arguing two entirely separate appeals before the same three-judge panel of the Superior Court of Pennsylvania. Although arguing two separate appeals on the same day remains a relative rarity for me and perhaps most other attorneys, I have now done this enough times that I can offer the following insights.
At the top of the oral-argument food chain is the U.S. Supreme Court. Being assaulted with especially challenging questions from as many as eight different directions (as Justice Clarence Thomas traditionally does not ask questions at oral argument) from justices who themselves or through their law clerks have mastered the record in a case requires the advocate to have a nearly unlimited knowledge of the facts, procedural posture and relevant law. Perhaps for this reason, the U.S. Supreme Court never schedules the same attorney to argue two unrelated cases on the same day.
Indeed, in a given two-week oral argument session at the U.S. Supreme Court, it is rare, but not unheard of, to see the same attorney argue one case toward the start of an oral argument session and then argue a second case toward the conclusion of the second week of the session. Perhaps because I was most familiar with the U.S. Supreme Court’s oral argument practices, I was taken by surprise the first time that the Pennsylvania Superior Court scheduled me to deliver oral arguments on consecutive days before two different three-judge panels, one sitting in Philadelphia and the second sitting in Harrisburg, Pa.
Both cases involved appeals arising after trials had occurred. The records in both cases were very large. In the first case, my clients, the plaintiffs, had prevailed before a jury at trial, but the trial judge granted judgment notwithstanding the verdict in favor of the defendants. In the second case, my client was the defendant in a criminal case who was appealing from a judgment of conviction, but he had what seemed to me to be a very strong constitutional argument based on the confrontation clause in support of a new trial.
Because both cases were going to require extensive preparation, and because it was very possible that I might not be finished with the first oral argument until late in the day on a Tuesday, before having to commute to Harrisburg to be present for the oral argument of an entirely separate appeal the next morning, I asked my client in the criminal case first if he would approve my requesting a postponement of the argument of his appeal until the next argument session. There were two reasons why I asked him first before asking in the civil case. First, I knew that my clients and co-counsel in the civil case were unlikely to agree to a postponement. And second, the three-judge panel assigned to my convicted client’s appeal was a much better draw for the prosecution than for the defense.
Fortunately, both my client in the criminal case and the prosecution were willing to agree to the postponement of that oral argument until the next argument panel in Harrisburg, which allowed me to prepare separately and thoroughly for both oral arguments in a way that did not interfere with one another. Even better, the panel ultimately assigned to hear and decide the criminal appeal was a far better draw for my client, and he won his appeal, as did my clients in the civil case.
My next double-booking for an oral argument was even less convenient, and there was far less I was able to do about it. For the first day of its September 2011 oral argument term, the Supreme Court of Pennsylvania decided to hold a ceremonial session at Old City Hall. This was also going to be the very first televised session of Pennsylvania’s highest court. As luck would have it, I ended up with two separate and unrelated oral arguments before the Supreme Court on that historic day.
Fortunately for me, the issues in each case, while undoubtedly important, were rather limited in scope, and thus it was neither impossible nor horribly inconvenient to prepare to argue both cases on the same day. Moreover, the court had scheduled several cases between my two oral arguments, so I had time to refocus my attention on the second case after completing my argument of the first case. What I learned that day was that not only was I quite capable of orally arguing two separate appeals on one day, but doing so actually can be quite fun. Connecting with appellate judges at an oral argument can be one of the most satisfying aspects of appellate litigation, and, at the risk of belaboring the obvious, two good oral arguments are even better than only one.
Although my first double dose of oral argument occurred more than two years ago, the outcome remains partially undecided. The case I argued second was decided first, in under a year’s time, and the result was 4-3 against my client. Since then, Pennsylvania’s legislature has begun the process of overturning the court’s result by means of a constitutional amendment, so my client’s position still might ultimately prevail. In the second case, no ruling has yet been issued, and many suspect that the court may be divided 3-3, which would at least mean that the victory my client achieved in the Superior Court in that case would survive.
My next potential opportunity to argue two unrelated appeals on the same day arose in a different way. A law firm that I had previously done some appellate work for had a case that was scheduled for reargument en banc (before a larger panel) in the Commonwealth Court. Separately, I was representing the appellant in a case that was assigned in the first instance for oral argument before the same en banc Commonwealth Court panel on the same day.
The case for my existing client, in which I had written the appellate briefs, seemed to present a strong case for reversal. The case for the other potential client, in which another law firm had written the appellate briefs, seemed very much to present an uphill battle to achieve victory. In this instance, I was concerned that agreeing to add a case that presented only a long-shot chance of victory for a new client might serve in the minds of the appellate judges to cast some doubt on my existing client’s entitlement to victory in the other case, which otherwise seemed to present a clear-cut case for reversal.
Fortunately for me, the law firm in the second case, for reasons of its own and perhaps sensing a lack of my ordinary level of enthusiasm for becoming involved in that case, decided to handle the second oral argument itself. In the case that I argued, my client won 5-0. In the other case, the side that was considering whether to hire me to handle the oral argument did not win. Whether it would have made any difference to either case had I argued both appeals I will never know, but I continue to feel that I properly made obtaining the correct result for my preexisting client my highest priority.
The two unrelated appeals that I am scheduled to argue this Wednesday before the same three-judge Superior Court panel arise in cases with rather lengthy records, but the issues that the two cases present are rather straightforward. Thus, I am confident that I will be fully prepared to orally argue both cases, and that neither case would benefit from a postponement, which neither client would desire. This time, however, there is only a single case currently listed between these two appeals, and if that case were to disappear or to move to the head of the oral argument line onto the expedited list, then I could conceivably be orally arguing these two separate appeals back-to-back.
What I have learned from these experiences is that arguing two unrelated appeals on the same day before the same appellate panel can be done well, and it can also be avoided under appropriate circumstances. The times when one should seek to avoid it are when the cases involved are especially complex or where concerns that one case presents might diminish your effectiveness in the other case. Fortunately, I have not yet had to confront the prospect of arguing three entirely unrelated appeals on the same day. Were that ever to arise, I would be strongly inclined to try to move at least one of the cases to another oral argument session.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215-830-1458 and email@example.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.