I had the pleasure of attending the Third Circuit’s en banc oral argument this morning in Bastardo-Vale v. Attorney General. The heart of the issue was whether the en banc court should overrule prior circuit precedent rejected by other circuits in interpreting an immigration statute. It was a lively argument and I encourage Third Circuit practitioners to listen to it once audio is posted (or watch it, if the video is posted).

In the meantime, watching the argument inspired a few practice thoughts:

• The petitioner’s side divided argument between counsel for the petitioner and amicus counsel. I’m never a fan of splitting argument, and I think the dynamics of en banc argument, where time is limited and the judges are scrambling more than usual to get a question in edgewise, make it even less attractive. Sometimes splitting up the argument among multiple advocates is unavoidable, as in multi-party appeals where the different parties have truly diverging interests, but I think counsel should view the argument-splitting option with real skepticism, especially in en banc arguments. Everyone made do well enough this morning, but my advice is to make the tough choice and pick the best advocate to present.
• Specifically here, petitioner’s counsel proposed to split their rebuttal time. Chief Judge Smith denied the request, fortunately for them in my view, observing that it is difficult enough for individual judges to get their questions in and fracturing the rebuttal would make it even more difficult.
• The Third Circuit has a well-established procedure in en banc arguments of giving each side five minutes at the start uninterrupted by questions. I very much wish I knew more about how that procedure came to exist and whether the judges currently view it as beneficial. I haven’t argued an en banc case, and maybe I’d change my tune if I did, but I don’t like the circuit’s uninterrupted-start procedure, which I’ve decided to call the Soliloquy Rule. As an advocate, I see the briefs as my chance to say my piece uninterrupted; oral argument is my chance to find out what the judges think and respond as best I can. While I get that articulating a coherent overview is a bigger challenge for counsel when there are a dozen or more judges firing questions, I just question whether that problem warrants the time it consumes.  Also, while the best advocates can use their monologues effectively, less experienced ones often head off down unhelpful paths, and the rule prevents judges from steering them to surer ground. Anyhow, the practice idea I’d offer is that the Soliloquy Rule can be waived, in full or in part, and I’d encourage counsel to consider doing so.
• Finally, I’ve banged this drum before, but: don’t talk over judges. Don’t. Talk. Over. Judges. It’s a lot harder than it sounds, so make it a focus of your argument preparation. Practice it at home the week before (if nothing else, a welcome arg-prep consolation prize for your spouse). Write it in all caps across the top of your podium notes. It’s the most common argument blunder I see, but a blunder it is. Would you show up for your oral argument in cut-off shorts and flip flops? Not in a million years. That’s how we should feel about talking over judges, too.