Martin chaired the appellate academy’s task force and initiative on oral argument. Hoping to spark a discussion with the Judicial Conference of the United States, the judiciary’s policymaking arm, he sent copies of the academy’s report this summer to Chief Justice John Roberts Jr. and to the chief judges of the U.S. federal appeals courts.
The academy has become concerned about the decline in the number of cases, particularly in the federal courts, that are scheduled for oral argument and the shrinking time allotted for their argument. The task force examined oral argument practices in the federal circuits and conducted a statistical analysis to evaluate the frequency of arguments and the types of cases being argued.
Federal Rule of Civil Procedure 34(b) begins with “oral argument must be allowed in every case,” subject to certain exceptions. But the task force’s statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.
Arguments generally occurred most frequently in appeals concerning bankruptcy, private civil cases and civil matters involving the United States. Not surprisingly, pro se cases rarely had oral arguments.
The task force also interviewed chief judges and found that while more were willing than unwilling to embrace the notion that oral argument is a good thing, there are obstacles, Martin said.
“The considerations that militate against it are part systemic and part things that could be attacked and worked on,” he said. “The systemic issues are the amount of time it takes and the cost. The things that can be worked on are improving effectiveness and efficiency and then maybe even improving the dialogue between courts and counsel on the reasons cases should be argued.”
The task force offered recommendations for the courts to consider, such as: establish pro bono or other programs to provide opportunities for argument in pro se cases; issue focus letters before argument, giving the lawyers advance notice of the issues of most concern to the court; make greater use of technology to enhance outreach and account for geographic challenges; and establish training programs for advocates.
With those steps, the appellate academy said it believes the courts can improve efficiency and effectiveness of oral arguments. The academy also recently teamed with the American College of Trial Lawyers to launch a nationwide clinical program to provide video training for appellate arguments.
Views From the Bench
One factor that might be contributing to the decline in oral argument: judges regularly said they don’t need to hear from the lawyers to decide a case. Some Supreme Court justices say oral argument can make a difference in certain circumstances but they generally have an idea of what the outcome will be.
“Argument might be more fluid in getting the court to the result. How can oral argument not be of some value in that process even if the judge’s instincts going in are the same as going out?” Martin said. “You hear enough judges say there are benefits to it even if it doesn’t change their mind. What’s not to like?”
The task force has met with nine of the 11 circuit chief judges, said Dentons partner Charles Bird, a past president of the appellate academy.
“We’ve had some good experiences and some not so good experiences,” he said. “Some said, ‘Thank you, we don’t want to change anything.’ Our targets have been the circuits that rarely give oral argument or give it so short it’s meaningless, and to advocate, ‘Oh by the way, one of the reasons you’re not doing it is you’re finding argument not helpful, so what can we do as a group of the most experienced appellate lawyers to help get lawyers who appear before you ready to have a conversation about what matters to you?’”
Martin said he has not yet had a response from the Judicial Conference about the academy’s study, but he plans to follow up. “If there are other things the Judicial Conference believes should be done to prepare the topic for discussion or other places where discussion could more profitably be held, I would like to know that,” he said.
Oral argument, Martin said, is the only time the parties and the court are joined in the decision-making process. “The rest of the time it’s behind the curtain,” he said. “There’s a real value in showing the investment that’s been made in the case when you have to provide explanations to clients and the public about how the system is working.”
Bird, however, cautioned: “We can’t make a group of federal judges do anything. The only thing we can do is point out where they stand relative to their brothers and sisters throughout the country and offer suggestions and a hand at trying to make their processes work better.”