The Third Circuit has posted video of thirteen new oral arguments, available on its website at this link. There are a number of high-interest cases in the new batch, in particular the argument between Neal Katyal and the government in the Philadelphia sanctuary-cities appeal that I gushed over here, City of Philadelphia v. Attorney General, video here.
Yesterday afternoon the Third Circuit held oral argument in City of Philadelphia v. Attorney General United States, a blockbuster appeal about whether the Trump administration can withhold law-enforcement grant money from Philadelphia to compel the city to assist with deporting immigrants. Thanks to a nick-of-time extension, I was able to attend the argument in person.
The panel was Judges Ambro, Scirica, and Rendell. Arguing for the government was Katherine Allen, a civil appellate attorney at the Department of Justice, and appearing for the city was Neal Katyal, a partner at Hogan Lovells and former Acting Solicitor General. Given all that, I expected an extraordinary oral argument, and extraordinary it was.
The argument was preceded by a comment by Judge Ambro that would seem baffling in some courts, but not here. Sounding a bit sheepish, he explained that the panel would actually be sticking at least roughly to the 30-minutes-a-side time limit. (Two of the judges had an event to attend afterwards.) “Normally this panel’s M.O.,” he explained, “is to go on forever.”
Katyal is one of the most accomplished Supreme Court advocates alive, and I hadn’t seen one of his arguments before, so I was eager to watch him in action. I left with my jaw on the floor. To wit:
- I’ve written before about the right tone for appellate argument, and how hard it is to achieve. In my view, Katyal’s tone was pitch-perfect throughout. One little example: he acknowledged up front that a particular point was the hardest part of his argument and then proceeded to defend it. (This is 53:52 through 56:30 in the audio file.) Sounds easy, but in the heat of the moment few lawyers strike that balance well.
- A circuit panel argument may be small potatoes for a lawyer who’s argued three dozen Supreme Court cases, but you’d never have known it. He was emphatically not coasting on reputation and talent. At one point he referred to a point Judge Rendell had made during an oral argument the day before, and afterward he tweeted that he’d sat in on several Third Circuit arguments this week. That’s a concrete expression of commitment to the case and respect for the court. If a guy who was on TV a couple days before his argument isn’t too busy to prepare that thoroughly, what’s our excuse?
- Katyal plainly went in with the goal of emphasizing that his positions had been adopted by the prior courts to have considered them. Lesser advocates would try to accomplish that goal with one sledgehammer swing, something like “the government’s frankly outrageous position has been completely and utterly rejected by every single court to consider it!” Katyal took a different approach. Instead of bombast, he used timing and elegant repetition, referring to the other courts’ rulings in his opening, his closing, and at his crescendo points throughout. David Frederick‘s superb book Supreme Court and Appellate Advocacy calls this “The Mantra,” and Katyal’s argument was an elegant model of how to do it effectively.
I could go on, but perhaps I sound like enough of a swooning teenager already. I haven’t talked about Allen’s argument here, but it was very high quality as well. If you’re an appellate lawyer looking to get better at oral argument, be sure to give this one a careful listen.
Judge Ambro closed the argument by observing how well both advocates had argued and what a privilege it was to have them, and I agree entirely.
The Third Circuit granted rehearing en banc in two related criminal cases that will be argued on October 10. The cases are US v. Santiago, 16-4194, and US v. Harris, 17-1861.
The appellant in Santiago summarized the issue thus:
Whether a defendant’s prior New Jersey conviction for assaulting a law enforcement officer is a “crime of violence” under the elements clause of the Sentencing Guidelines
And one appellant in Harris:
Does Appellant’s ACCA-enhanced sentence violate his right to due process of law because it relies on prior convictions for Pennsylvania robbery and aggravated assault that are not categorically violent felonies under the Armed Career Criminal Act?
So if Johnson, Descamps, Mathis, and the categorical approach are your cup of tea, you won’t want to miss en banc argument day next month.
Two Third Circuit judges spoke yesterday at a CLE event on effective appellate advocacy, and they had some mighty interesting things to say about how the court is responding to criticism that it isn’t granting oral argument often enough.
Yesterday’s CLE was a tremendous event, sponsored by the Third Circuit Bar Association. (But I’m biased, since I’m on the 3CBA board and was one of the program’s organizers.) Judges Vanaskie and Krause presented on one panel, with David Fine moderating. The other panel was three dynamite appellate lawyers —Nilam Sanghvi, Craig Shagin, and Sara Solow, moderated by Tom Schmidt. I learned a lot, and all the attendees I spoke to afterwards were glad they came. Organizational boosterism aside, if you practice much in the Third Circuit, you really should make every effort to attend programs like this.
Okay, so here’s what the two judges had to say about oral argument rates. (If you’re new here, I have scads of prior posts about the issue, notably here and here.) This is a hot topic in these parts, so I’ll give a blow-by-blow account in as much detail as my notes and memory permit. [I’m no journalist, so if you were there and remember any of this differently, by all means please contact me!]
To put it in some context, this came up about halfway through the judges’ panel, I believe they discussed this topic at greater length than any other, and the judges seemed clearly to have come prepared to address it. The issue came up when Fine observed that the circuit’s rate had fallen from past years and asked the judges whether they saw the decline in arguments as positive or negative.
Judge Krause tackled it first, and she began, “We listen.” She said the judges have been hearing those in the bar (“Mr. Stiegler and others,” she said, and I blushed) who’ve raised the issue. She acknowledged at length the benefits of holding more arguments: to the parties, to the bar for professional development, to the public at large to see their judiciary in action. And, not least, to the nation itself, so that constituents, the bar, and the public understand the importance of separation of powers, balance of powers, and “an independent judiciary,” emphasis hers. So, she said, there are lots of reasons to have more arguments, and she emphasized that the judges of the court now discuss this issue regularly.
And, she explained, the number of Third Circuit oral arguments has in fact gone up. I was especially interested to hear this, as regular readers will know, because the AOC’s most recent public stats about this are sadly useless. She said that in 2016 the Third Circuit held 201 oral arguments, while in 2018 it held 255, an increase of almost 30%. (I haven’t independently confirmed that data, but I’m certain if she said it then it’s correct.) Other circuits’ recent argument numbers did not increase, she noted, which suggests that the increase was the product of the judges’ deliberate choice.
Finally, Judge Krause said that she expected the number of Third Circuit arguments to continue to increase. She said that judges are joining the court with recent experience in the bar who share that perspective, by which I believe she meant the bar’s perspective about the value of argument and the need for more of them.
Judge Vanaskie largely echoed Judge Krause’s comments. He agreed that “certainly” the judges have had discussions about the frequency of oral argument. He explained that deciding how many arguments to hold was a balancing act. When preparing for each argument, he said, the judges take an extremely deep dive into the case. It takes a lot work to be that well prepared, and doing it for every case the court decides isn’t feasible.
As it stands now, he said, every lawyer knows that when the court grants argument it is extremely important, that the panel is troubled by the case and not of one mind. And he believes holding argument in every case would be a mistake, because it would dilute its importance and add to the expense of an appeal for all clients.
Judge Vanaskie reiterated that the issue is under active consideration in the court. He said that at every judges’ meeting now there is some discussion about it. He said the judges are open to listening.
Finally, Judge Krause contrasted the Third Circuit’s practice to the Second Circuit’s, where argument is held in most cases but the lawyers sometimes get only five minutes. She asked whether (and I’m paraphrasing from memory here) arguments that short really help enough to justify their cost and said she did not believe so.
Fascinating and remarkable, and not, I suspect, the last word in this conversation.
On Friday, Law360 posted an important story by Jeannie O’Sullivan on the rarity of oral argument in the Third Circuit, link here. (If you’re not a Law360 subscriber you can access it through Twitter here.) I’ve looked at that topic here a few times, here in particular.
The article features an interview with Third Circuit Chief Judge D. Brooks Smith in which he says he’d like to see the circuit’s oral-argument-grant rate “a little higher”:
The trend certainly appears to be a negative, Judge Smith said, although he acknowledged that the court must consider the cost-effectiveness of oral argument. Pro se cases, which make up more than half of the court’s docket, usually aren’t well-suited for oral argument, he said. The ones more likely to get the oral argument green light are those that could be overturned, tackle an issue of first impression or involve a situation of public interest, versus just private parties.
“The helpfulness of argument is always of importance to those of us who are judges. You want to make sure the expense really is going to pay some kind of dividend to the process,” Judge Smith told Law360.
“That said, would I like to see the percentage a little higher? Yes. But I don’t think it would rise any considerable degree if we, in fact, undertook some diligent effort to up our numbers,” he said.
He said he thinks his Third Circuit peers agree that no case truly warranting oral argument is denied it.
Chief Judge Smith also addressed the oral-argument-rate issue last year in a story in the Legal Intelligencer, quoted here.
O’Sullivan also quotes Reed Smith partner James Martin, former president of the American Academy of Appellate Lawyers, discussing AALS’s landmark 2015 report on federal appellate oral argument rates, link here. (It’s a tremendous report. If you haven’t read it yet, you should.) Martin describes the reaction the AALS oral argument report has received from judges:
The overall response among the circuits has been “all over the map,” Martin said, with some judges indicating it’s something they want to address and others being “not all that troubled.” Judge Smith, who is among the jurists that have joined the academy’s discussion about the report, is a “very conscientious” jurist who takes the appellate bar’s concerns seriously, Martin said.
I’m also quoted in the story, describing circuit practitioners’ concern about the low argument rate while acknowledging the bar’s own responsibility to improve the usefulness of arguments to the judges. As much as I’d like to see the court holding more arguments, Chief Judge Smith is absolutely right: judges aren’t going to grant more arguments unless they believe those arguments will help them decide cases better. And, even now, there are too many lousy arguments that waste the judges’ time because the lawyer didn’t understand how to prepare and present a federal appellate argument. So if lawyers want the court to hold more arguments, one part of the answer is that we need to make our arguments better.
Anyhow, it’s an excellent story on a hot Third Circuit topic.
In January, Third Circuit Judge Kent Jordan presented on the topic of oral argument at a Third Circuit Bar Association CLE in Delaware, and one thing in particular that he said has been rolling around in my mind ever since. It’s commonplace to advise lawyers that oral argument isn’t an interrupted speech but rather a respectful conversation, and that’s good enough advice as far as it goes. But Judge Jordan emphasized that oral argument is something unique, a highly stylized form of communication like kabuki theater.
Kabuki is a Japanese dance-drama style that’s over four centuries old. If you’re not familiar with it, here’s a description and here’s a video. I see from internet searching that kabuki is sometimes used as a metaphor for political posturing where the outcome is pre-ordained, but I don’t think that’s what Judge Jordan meant. Instead, he used kabuki as an example of a performance art with conventions that are arcane and rigidly observed and that require years of disciplined training for performers to master.
So understood, I think his kabuki metaphor for oral argument is illuminating in many ways. Let me suggest two, one concrete and one more abstract.
First—and this is one of the points Judge Jordan was making—when a judge begins to speak, you stop. Even mid-syllable. Even mid-important, carefully prepared, ever-so-devastating-syllable. For many lawyers, that is not normal conversation. We talk over each other all the time: to finish out a thought, to jump in when the other person seems to be winding up, to signal enthusiasm. Hitting pause the instant a judge starts, and not talking again until the judge is done, doesn’t come naturally at all to many of us. It’s kabuki not conversation, and it takes commitment and discipline.
I’ll add that this is especially true for men, and most especially for men arguing before judges who are women. One landmark study showed that, in conversations between men and women, men cut in 46 out of 48 times. Another study found that men are three times as likely to interrupt women as they are to interrupt other men. Sadly, these gender dynamics play out at oral argument, too. For example, while I was preparing for my last argument I listened to one Third Circuit argument that was so smart and elegant, spectacular in every way but one: he kept talking over the female judge on the panel. I don’t think that necessarily means that lawyer was a misogynist jerk, but it does show he needed to work on an argument skill.
My second oral-argument-is-like-kabuki example is my own idea, so don’t blame this one on Judge Jordan. The right tone for appellate oral argument is a challenge to define. Be crisp and prepared but not wooden. Be reasonable but not wishy-washy. Be persuasive but not too emphatic. Four parts advocate, one part law professor, add just a dash of actor. It’s hard enough to define the right tone—summoning forth that tone under the knee-melting stress of argument is much harder, and maintaining it under fire is hardest of all.
Most oral advocates, in my view, err on the side of over-certainty. We argue as if the law is all obvious, the facts on each point overwhelming. The problem isn’t just that adjectives and adverbs don’t persuade, or that appellate judges bristle at bombast. The deeper problem is that judges don’t want to hear how easy and obvious your case is. If they thought it was that simple, they probably wouldn’t have granted you argument.
Our natural impulse is to assure the judges how overwhelming our side is, but most judges don’t want pat answers to hard questions. They want lawyers who know the facts and the law cold who are willing to help them grapple with the hardest parts of the case. You ain’t much help with the grappling if all you can do is deny that any hard parts exist.
I confess, when I get a tough question at argument, my natural impulse is to respond with something like, “No, your honor, because the Supreme Court clearly has held ___.” But instead of over-selling, it’s often more effective to acknowledge the gray areas while still remaining firmly an advocate. More like this: “Well, that’s probably one of the crux issues in this case. I think the clearest sign that ___ is ___.”
Again, it goes back to Judge Jordan’s kabuki point. Hitting the right tone for persuasive oral argument is like suppressing your impulse to talk over a judge. It’s not familiar or natural, and it’s not as easy as “respectful conversation.” Before you can begin to master it, first you have to decide to work at mastering it.
A panel of the Third Circuit heard oral argument today, held a brief recess, and then reconvened and announced that it would affirm the ruling below. Quite extraordinary.
The case involved access by transgender school students to the bathroom of their choice — that is, whether a school district could allow transgender students to use the bathroom corresponding with their gender, not their sex at birth. The suit was brought by school parents who claimed that the policy violated other students’ bodily privacy rights. The district court ruled in favor of the school district. Today’s argument was before Judges McKee, Shwartz, and Nygaard.
I wasn’t aware of a specific case where a Third Circuit panel had ruled from the bench after argument, but on Twitter Katie Romano pointed to a 2008 immigration appeal where it had happened. [UPDATE: Andy Simpson also pointed me to a 2001 Virgin Islands appeal where Chief Judge Becker read an opinion from the bench after argument, In re: Application for Change or Reassignment of Judge Pursuant to 28 U.S.C. §§ 144, 455 (3d Cir. May 30, 2001).] Still, extremely rare.
From Roebuck’s story:
Circuit Judge Theodore McKee said he and his colleagues – Judges Patty Shwartz and Richard Lowell Nygaard – recognized how important the case was to students at Boyertown Area Senior High School and wanted to resolve the issue before the students at the heart of the case, many of them seniors, graduated later this month.
Reading an order from the bench, McKee said that the judges agreed with the lower court that found the privacy of four students who sued the district in the Berks County borough last year had not been violated by administrators’ decision to allow transgender students into the bathrooms and locker rooms of their choice.
“We agree that the plaintiffs have not demonstrated a likelihood of success,” McKee said, reading from the bench, “and that they have not demonstrated that they will be irreparably harmed.”
UPDATE #2: The written judgment, issued the same day as the argument, is here.
If you want to get better at oral argument, how do you do it? I recently had a big Third Circuit argument (link to the audio here, if you’re curious), so I’ve been puzzling over that question a lot. You can work harder to prepare for each individual argument, you can read books about oral advocacy, and you can practice not saying, “I try not to read that many cases, your Honor. . . . That’s why I wore a suit today,” like this fellow did. All helpful.
But one of the best ways to improve at oral argument is to listen critically to good arguments. It’s easy to find good Supreme Court arguments, but finding circuit arguments takes a bit more work. The Third Circuit posts audio of all of its arguments online (low-quality audio, alas), and video of a handful, but you have to know which cases to look for.
For this post, I’ve pulled together links to some Third Circuit oral arguments by some excellent oral advocates. (Plus one Supreme Court argument because I couldn’t bear to leave Judge Bibas out.) To be clear, this isn’t a list of the best Third Circuit arguments or advocates — for each one linked here, there are many others I could have included. But if you’re looking for model arguments from our circuit, I believe this list will get you off to a good start.
Future Third Circuit judges and Third Circuit nominees
* Supreme Court argument.
Former Third Circuit judges
Former solicitors general
Third Circuit Bar Association presidents
Other Third Circuit advocates
Katherine Romano — Katz & Assocs. v. Concepts in Health — argument
Other advocates from outside the circuit
** The links are for the panel argument and the en banc opinion. Here is the en banc argument.
The en banc Third Circuit heard oral argument yesterday morning in Hayes v. Harvey, a significant public-housing-law appeal. My prior posts on Hayes are here and here. Audio of the argument is up already on the court’s website here.
I also just noticed that the Court has posted on its website video of four April arguments. Judges Chagares, Vanaskie, and Fisher heard all four. Two are federal criminal appeals and the redoubtable Bob Zauzmer argued them both for the government (arguing two cases the same day would be my demise). And my fellow Third Circuit Bar Association board member Lisa Rodriguez of Schnader argued Ortiz.
UPDATE: The data described in this post, while presumably accurate, is spectacularly misleading. The apparent cause of the problem is that the AOC reports the number of cases decided after oral argument, by published opinion, and reversing — not the number of oral arguments, published opinions, and reversals. That becomes a problem when, after one oral argument, a court issues one published opinion reversing over 500 cases. That’s what happened in March 2017 in In re: Fosamax. My original post illustrates how, in this unusual situation, the AOC’s data-reporting methodology renders important data worse than useless.
Astonishing changes in the Third Circuit’s handling of cases occurred in 2017.
Two years ago, I wrote what I consider one of most significant posts I’ve done on this blog. The gist was clear from the title: “Guess which circuit holds the few oral arguments. (Hint: it’s the same one that issues the fewest published opinions.” I described how the Third Circuit’s rate of oral-argument, publication, and reversal all had plummeted between 2009 and 2014.
I didn’t post an update here last year, but the basic picture remained the same, with the Third Circuit still holding fewer arguments and publishing fewer opinions than any other circuit, even ones that decided far fewer cases.
Two days ago, the federal courts released last year’s court statistics.* I looked at them today, and my jaw is on the floor.
Compared to the prior year, the percentage of cases in which the Third Circuit held oral argument more than tripled.
The percentage of cases in which the Third Circuit published its opinion more than quadrupled.
The percentage of case in which the Third Circuit reversed more than quintupled.
Just look at these graphs:
The court held 208 oral arguments in 2016; it held 814 in 2017.
The court published 154 of its opinions in 2016–in 2017, it published 741.
Have I conveyed my astonishment?
If you’re wondering if this reflects a national trend, at least at first glance I’d say no. Nationally, the argument rate and the publication rate ticked up just a couple percentage points last year, while the reversal rate was up just over 1%. I’d guess CA3 alone accounts for a good chunk of those small increases.
Here are some more numbers that jumped out at me:
- The total number of appeals commenced in the Third Circuit in 2017 was down 18.7% from the year before. Nationally, appeals commenced were down 16.3%.
- Criminal cases became a much bigger part of the Third Circuit’s caseload last year: 24.9% of all terminated cases, vs. 13.6% the year before. Nationally, it was about 20% both years.
- The circuit’s reversal rate in criminal cases didn’t change much– 4.7% in 2017 vs. 4.2% the year before.
- Get this: the circuit’s reversal rate in private civil appeals went from 11% in 2016 to 56.7% in 2017!
There you have it. If you’re wondering how to explain all this, well, so am I.
UPDATE: I have serious doubts about the accuracy of these statistics. The one that’s easiest to check is the number of published opinions. As best I can tell from online searches, the court published about 182 decisions between 9/30/16 and 9/30/17 — a very far cry from the 741 reported, and much closer to the 154 it published the year before. And, come to think of it, I summarize every published opinion as it’s written, and I’m pretty sure I would have noticed if the court had gone from 3 or 4 published opinions a week to 14 or 15.
So, all of these numbers should be viewed with considerable skepticism until confirmed.
* In this post, “last year” and “2017” is shorthand for the 12-month period ending September 30, 2017. “2016” is shorthand for the 12 month’s ending the same day in 2016.
The Third Circuit, like almost every other federal circuit, posts on its website audio recordings of oral arguments. I’ve been listening to a bunch of them lately. Some of the arguments are terrific, some less so, but every Third Circuit argument recording has one thing in common: the sound quality stinks.
Click on this link and listen to the most recent Third Circuit argument recording. I defy you to tell me what Judge McKee says at the beginning. I challenge you to listen for even five minutes. That constant drone. The echoes. Those mysterious phasers-set-to-stun vibration noises. The gusts of breath. That brain-rattling assault of shuffling paper.
If I had never seen the inside of the Maris courtroom, and someone asked me to describe it based on an argument recording, I would guess that it is a long, basement hallway made of cinder blocks. And I’d guess everyone was talking into a bullhorn, chewing gummy worms, and hiding under a warm sleeping bag.
And it doesn’t have to be this way.
Just compare that Third Circuit audio with any one of these Eleventh Circuit arguments. Seriously. Go on, give it a try. The difference is not subtle. One sounds like it was recorded in 2018–the other,1918.
Sure, maybe this is just a wacky blogger rant. Maybe a circuit court has bigger fish to fry than replacing microphones. This I concede.
But listener fatigue is real. As I recently described on Twitter, I make an effort to listen to great Third Circuit arguments to sharpen my own skills, but over time that’s exactly what it is: an effort. I started to wonder if I was losing my nerdy appreciation for oral advocacy, until it dawned on me that the recordings themselves make listening a chore.
When lawyers get better at oral argument, everyone benefits. One of the easiest and most effective ways to improve is to listen critically to other lawyers’ arguments. More lawyers in the Third Circuit would do that, I am convinced, if the court’s audio were not so execrable.
Sounds like a good idea to me.
Update: here‘s an especially atrocious argument recording.
Brand-new Third Circuit Judge Stephanos Bibas will sit on a panel hearing oral arguments on March 23. The other two judges on the panel are Judges Hardiman and Roth.
The case-information page for the morning’s arguments is still sparse (it will be updated as counsel provide info), but there will be three cases argued. One is a housing appeal, and another is tantalizingly captioned “Commonwealth of Pennsylvania v. President United States et al.”
The en banc Third Circuit is hearing two arguments on Wednesday morning. They’re both scheduled for 9 a.m. so I’m not sure which one will be first. Here’s a bit on each one.
I’ve posted about Vooys v. Bentley, the big Virgin Islands jurisdiction case, here. The basic issue is whether the Third Circuit still has certiorari jurisdiction over older Virgin Islands territorial-court cases. I noted in my prior post that the posture of the case suggests the court will reverse its prior panel ruling allowing such jurisdiction, and that suggestion got a little stronger last week when the court directed the parties to limit their argument to the jurisdictional issue, not the merits. The argument on behalf of the petitioners will be presented by two University of Virginia law students, as described here. UPDATE: and here’s a post about Dwyer Arce, the Nebraska associate who’s arguing Wednesday on behalf of the VI Bar Association.
The other case is Rotkiske v. Klemm, a Fair Debt Collection Practices Act appeal. The legal issue is whether the discovery rule tolls the FDCPA’s one-year statute of limitations. The case was orally argued before a panel (Fisher, Hardiman, Greenaway) early in 2017, and then 8 months later the court, sua sponte, granted rehearing en banc. That sounds a lot like a court considering overruling a prior panel opinion, but I haven’t dug into the details enough to know the whole story.
The court also has three panel arguments set for the afternoon. Two of them are habeas appeals, and the third is a challenge to New Jersey’s house-arrest statute being argued by Paul Clement.
Should be an interesting day of arguments. I’m hoping to be there to observe, but I have a Third Circuit reply brief due that day, so we’ll see.
Three recent studies have looked at whether women are getting their share of oral arguments in appellate courts:
- On his Empirical SCOTUS blog, Adam Feldman examined Supreme Court arguments between 2012 and 2016 and found that less than 18% of the advocates were women–even though women’s win rates were higher.
- Lawyer Raffi Melkonian studied Fifth Circuit oral arguments from 2016 and found that 17% were by women.
- And on his New York Appeals blog, Rob Rosborough looked at 2016 arguments in the NY Court of Appeals and found that 37% were by women.
These studies inspired me to figure out how the Third Circuit measured up. The answer: out of 100 recent Third Circuit oral advocates, 34 were women.
Breaking down the numbers, here’s what I found:
- In criminal or habeas cases, women were 44% (7 of 16) of the advocates.
- In civil cases,* women were 32% (27 of 84).
- There were 4 cases were both advocates were women, versus 18 where both were men. In the other 26, there was at least one of each. One of those 4 cases in which both arguing counsel were women was Hayes v. Harvey, the public-housing appeal in which the court recently granted rehearing en banc.
* Civil includes everything that’s not criminal or habeas. (And, while not the focus of this post, the fact that only 8 out of 48 arguments were crim/habeas cases is startling.)
My quick-and-dirty methodology: working backwards from the end of 2017, I went through the appeals with published decisions after oral argument until I had 100 advocates. That ended up being published opinions issued between August 29 and December 31; it was 48 cases instead of 50 because in 4 of the cases 3 lawyers argued. Whenever I had any doubt about a lawyer’s gender, I checked online. Note that my numbers exclude oral arguments that resulted in unpublished opinions, which shows I’m lazy but I doubt affects the numbers.
I confess that I was surprised by these results. I suspected our gender imbalance among oral advocates would be just as bad as the Fifth Circuit’s and the Supreme Court’s. Not so. Yay Third Circuit.
Still, a third of our circuit’s oral arguments by women is nothing to crow about.
How to improve? Melkonian encouraged senior lawyers who assign cases, and clients who pick who argues, to give more women a shot. I agree, but I believe the rest of us have a role to play, too.
Bar groups decide who presents on CLE panels; judges decide who to appoint to committees; lawyers decide who to invite to judge their moots; reporters decide who to quote; nerdy bloggers decide whose work to recognize. Those decisions, and dozens like them, all affect career trajectories.
Something’s wrong when it seems like a triumph that men are getting only two-thirds of the oral arguments. It’s going to take a conscious, sustained effort by all of us for women appellate lawyers to get their due.
The old news: just before the end of the year, the Third Circuit granted en banc rehearing in two cases, Hayes v. Harvey, an important public-housing appeal, and Vooys v. Bentley, a big deal for Virgin Islands litigants.
The new news: the court has now scheduled the Vooys oral argument for February 21 and the Hayes argument for May 16. In Vooys, the court also ordered supplemental briefing and granted amicus curiae the Virgin Islands Bar Association’s motion for leave to participate in the oral argument.
An eagle-eyed reader pointed out to me today that there are only 10 oral argument videos posted today on the Third Circuit’s webpage. (Including some interesting ones, like Finkelman v. NFL, which I discussed here., and US v. Hird, which features a who’s who of top circuit criminal-appeals lawyers.)
The odd thing about that is that a number of argument videos that previously were posted by the court are no longer there. For example, back in May I posted here about three videos the court had posted, but only one of them is still there.
If anyone knows the solution to this mystery, get in touch. I’ll update this post if I learn more.
Jeannie O’Sullivan, with additional reporting by Dan Packel, had this story yesterday at Law360, headlined, “3rd Circ. Fracking Case Put Off After River Basin Atty Faints.” The article says the poor lawyer fainted “in the middle of his argument.” He regained consciousness quickly and was attended to by medics. After a brief recess, presiding Judge Jordan announced that the argument was postponed to a later date.
No, the court didn’t post audio of the argument on its website. Yes, I feel a bit guilty for looking.
Listening to the argument in the first case — Douglas, a criminal-sentencing appeal — reminded me how important it is to ditch all the wind-up and get to the point.
Here is how the appellant’s argument began:
Thank you, your honor. [Pause] May it please this honorable Court. Attorney Ivory. My name is Arnold Bernard, and I represent the appellant in this matter, Kenneth Douglas. I’ve asked this panel if I would be permitted to retain five minutes for rebuttal in this matter ….
Thank you. It’s truly a humbling experience to be here before an en banc convention of this honorable Court. On behalf of myself and my client I’d like to thank this Court for granting additional review in this very important matter.
This decision will impact Mr. Douglas, but not only Mr. Douglas, it will likely impact similarly situated defendants across the nation. So with that I’m going to proceed to the arguments that I’ve prepared.
I’m going to dispense with explaining the standard of review that we are going to employ in this matter. I don’t believe that that’s at issue with regards to reviewing the sentencing decision.
However I would like to articulate the issue, and I believe it’s a very narrow and finite issue that this Court must decide. And that issue is specifically whether the appellant, Kenneth Douglas, held a position of trust when he was employed by United Airlines as an airline mechanic who possessed a security clearance and was convicted of smuggling cocaine through that airport that he worked at.
Now when we review the position of trust enhancement, we utilize a two-step process, determining whether or not the appellate held a position of trust and, if so, then whether the appellant abused that position of trust. That first step is reviewed de novo. And that’s what this Court is … I would point that this Court is looking at here.
That is not, not, not the way to start an oral argument.
He’s almost two minutes in, and he still hasn’t argued anything. For starters, the second, third, and fourth paragraphs should have been axed.
(By the way, he’s not getting interrupted because the Third Circuit gives en banc advocates 5 minutes without questions at the start.)
Jumping forward a ways, here is the first sentence counsel utters that contains an actual argument:
Those two examples, I would submit that the distinction between those examples and the singular example that it provides for when it should apply are that the individuals in those examples have mere physical access or the mere physical means to commit the crime by virtue of their access to areas from which the general public is prohibited.
That may not be perfect, but it’s an argument, finally. Counsel finishes that sentence more than three and a half minutes after his time began.
[I want to be clear that I’m not suggesting this guy is a bad lawyer or even that overall he gave a bad argument. Once he hit his stride, he made telling points, and, in fact, I suspect he may win this appeal. (So there, blog guy.) I don’t even mean to suggest that the start of his argument is unusually bad. To the contrary, I think lots of lawyers make the same mistake, especially lawyers who, like him, don’t focus their practice on appeals. It’s just more obvious here because the judges aren’t jumping in to get him on track.]
Good morning your honors, and may it please the Court. Paul Clement for the plaintiffs. New Jersey’s sports-wagering law is flatly inconsistent with PASPA.
If “getting to the point” were an Olympic sport, there’s your gold medalist. From the moment the presiding judge said “Mr. Clement?” to the end of his first sentence of substantive argument: less than 10 seconds.
We can all learn by observing argument done right — we should learn from the mistakes, too.
If you’re an experienced appeals practitioner with little or no Third Circuit experience, and now you’ve got a Third Circuit appeal, this post is for you. You’ll likely find that Third Circuit practice holds no huge surprises, but every court has its own rules, practices, and norms.
If you’ve done your share of appeals but you’re new to the Third Circuit, here are nine things you should know:
- Don’t count on getting oral argument. The Third Circuit holds the fewest oral arguments of any federal circuit in the country — 20% fewer in 2016 than the next lowest circuit. The Second Circuit holds argument in almost a third of its cases, the DC Circuit in almost half, but the Third Circuit grants argument less than 10% of the time. Unless your case is extraordinary, you’d be foolish to bank on the court granting oral argument, so if you’ve got something to say, say it in your brief(s).
- You’ll find out who’s on your panel after the briefs are submitted and roughly two weeks before oral argument or submission on the briefs. The three panel judges are identified in the letter from the clerk you receive on ECF, captioned either “Submit Notice” or “Argue Notification,” notifying you whether the panel granted argument (a decision made by the judges not staff counsel and made after briefing).
- Don’t be confused by the letter you get from the clerk (also after the briefs are in, but before the letter in #2, this one ECF-captioned “Calendared_Merits”) asking if you’re available for argument on a particular date. This letter is sent out by the clerk automatically, meaning it does not imply that the court will grant oral argument in your case.
- The Third Circuit is an emphatically centrist court. Different folks would draw these lines in different places, but it wouldn’t be crazy to classify the active Third Circuit judges as 1 liberal, 2 conservatives, and 8 moderates. (Here’s one perspective.) So if your case is ideologically charged, know that the deciding vote on your panel will quite likely be a centrist.
- Steer well clear of attacks on the court below or the other side. This is true in most any appellate court, but especially so here. The Third Circuit’s patience for sniping and insinuations of bad faith is low. Your devastating verbal jabs are way more dangerous to you than your intended target.
- Follow all the rules. The court has come down hard recently on lawyers who didn’t, including lawyers with little Third Circuit experience. Howard Bashman has warned that these cases “may indicate that the Third Circuit’s previous forgiving approach toward errors affecting form but not substance has come to an end.” (Links to the federal appellate rules and the local rules are on Third Circuit’s website and also on the sidebar of this blog.)
- The court has standing orders discouraging requests for extensions of time or brief-length, and they mean it.
- If you do get oral argument, be aware of two ways the Third Circuit differs from other circuits. First, the court can be loosey-goosey with argument time limits. Don’t be shocked if the panel keeps peppering you with questions long after your red light went on. Second, the court now posts video of a few arguments on its website, which you may find helpful for getting a feel for what to expect beforehand, or impressing your mother afterwards.
- For more comprehensive coverage of circuit practice, there’s a Third Circuit practice manual that was just updated this year. There’s also a shorter (and free) online practice guide put out by the circuit bar association. Both are outstanding. And of course the circuit clerk’s office is indispensable.
Last thought: consider consulting with a lawyer who practices in the Third Circuit regularly. One place to start is the circuit bar association’s board. I’m on it, and I consult a lot with lawyers doing Third Circuit appeals, but others do too. Whether you need to figure out procedure, understand the court’s dynamics, or moot your argument, sometimes there’s no substitute for local expertise.
Here’s how to pronounce judges’ last names that sometimes get mangled:
- Chagares — shuh GARR iss (rhymes with ‘the Harris,’ not ‘the Norris’)
- Vanaskie — vuh NASS key
- Scirica — suh RICK uh
- Cowen — first syllable rhymes with ‘now,’ not ‘go’
- Nygaard — NYE gard (first syllable rhymes with ‘hi’)
On July 10, the Third Circuit panel of McKee, Ambro, and Restrepo will hear oral argument in Fina v. Miletto, No. 16-3311. The appeal arises from a suit brought by Frank Fina and other former state prosecutors and investigators alleging that convicted former Pa. AG Kathleen Kane violated their First Amendment rights during the Porngate scandal. Legal Intelligencer coverage of the district court’s dismissal is here.
Here is the appellant’s case summary:
Whether Kathleen Kane’s criminal misconduct, which was designed to coerce and silence plaintiffs criticisms of her while Kane was serving as the AG, constituted unlawful governmental retaliation for Plaintiffs protected exercise of free speech?
And the appellee’s:
Whether former AG Kathleen Kane violated the constitutional rights of the plaintiffs when she publicly criticized the work they did as criminal investigator and prosecutors and released pornography that they had maintained on the AG’s computer system.
Should be interesting.
The Third Circuit has posted video recordings of three recent oral arguments, and one of them is a case that has gotten a lot of attention. All three cases were argued on May 9 before Judges Ambro, Restrepo, and Nygaard.
The high-profile case is Fields v. City of Philadelphia, the PA ACLU’s appeal from a district court ruling that civilians have no First Amendment right to film on-duty police absent expressive conduct. The case has gotten extensive media coverage, such as this 2016 story.
The other two new videos:
- Bennett v. Superintendent, a habeas corpus appeal argued by the Drexel Law Appellate Litigation Clinic and
- Mendoza-Ordonez v. AG, an immigration appeal involving asylum.
Arguing counsel and case summaries for all three pages are here, just click the arrow to the left of each case number for the details.
P.J. D’Annunzio had this fine article in the Legal Intelligencer Monday — its headline is the title of this post — looking at the decline in the number federal circuit and district court oral arguments.
Of particular interest are Chief Judge Brooks Smith’s views:
The expense of oral argument is something that is often overlooked in the conversation over its disappearance, Smith said. Travel costs can be prohibitive for clients who need to send their lawyers cross-country to appear in a circuit court. This leads to clients settling with having their arguments made in briefs.
* * *
For the most part, Smith said, lawyers do stick pretty close to their briefs when arguing before the court. Be that as it may, he noted that there is still use for the practice.
“The phenomenon of oral argument is something I still marvel at as something that is able to refine a point orally that might not come across on the printed page,” Smith said.
It also provides judges with the opportunity to ask for greater clarification of a point that may have been unclear in a brief. Additionally, Smith said oral argument can be used by a judge on a panel to persuade his or her colleagues on a certain point.
“That judge may be seeking to make a point with one or both of the other judges on the panel,” Smith said.
Bashman: Good morning your honors. May it please the Court. My name is Howard Bashman and I represent the plaintiffs-appellants, Kenneth and Rose Mann, as parents and guardians of Sheldon Mann. With the Court’s permission I’d like to reserve three minutes for rebuttal.
Judge McKee: Sure… This is a real honor. You’re well known to this Court. I don’t think you’ve ever argued before a panel that I’ve been on before. So this is a delight. Not to say that your case has merit or it doesn’t have merit, but it’s nice to see you arguing before a panel that I’m on. Go ahead.
On the other hand — and this is probably less rare, sadly — sometimes an argument starts off worse than the lawyer probably hoped. Take this opening by John Eastman arguing another case the same morning:
Eastman: Good morning your honor.
Judges: Good morning.
Eastman: My name is John Eastman, I’m representing the American Civil Rights Union, the appellant in this case. I want to start off by acknowledging that the National Voter [pause] I’m sorry, go ahead.
Judge Rendell: No, go ahead.
Eastman: [Pause] You’re asking how the slip had, uh, my co-counsel but we had filed the oral argument that I would be arguing.
Judge Rendell: Okay.
Judge McKee: Okay. And you are Mr. Eastman?
Eastman: I am Mr. Eastman, yes. I want to start by acknowledging that the National Voter Registration Act is rather confusing on a whole lotta levels. And …
Judge McKee: I’m not sure it’s all THAT confusing …
Eastman: [raising voice to talk over judge] … well, its its intricate its…
Judge McKee: [continuing] … unless you’re trying to read something into it that’s not there.
Lawyers never know how an argument will go. Sometimes the surprise is a happy one — sometimes not.
Howard Bashman‘s latest appellate column in Legal Intelligencer is provocative. He criticizes the Third Circuit’s new argument-posting procedures (Rule 2.6 here) as “a set of procedures that even the most hardened bureaucrat would find inspirational.” The upshot, he says, is that only two videos were posted in the first two months, “the softest of imaginable launches.” The Third Circuit’s approach, he writes, is “remarkably cautious” and “seems antiquated and unnecessarily restrictive.”
Bashman suggests this fix:
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.
It’s a fine column that makes a reasonable point with vigor, but I see the issue a bit differently.
I’m disinclined to criticize the Third Circuit for not going as far as the Ninth Circuit when it’s gone further than all the other circuits. After all, it may well be that, without the cautious procedures Bashman laments, the court would not have been willing to post argument video at all.
And, let’s face it, these are historically scary times to be a federal judge exposed to the public eye. Just ask now-inactive Judge Barry. A presidential candidate turned her into national news by distorting what she’d written in a decade-old opinion. Think what they could have done to her if they’d been able to pore over dozens of argument videos, cherry-picking the most-inflammatory sounding moments to feature in attack ads and viral videos.
True, Judge Barry’s situation is unlikely to recur, but two Third Circuit judges have been mentioned within the past year as short-list Supreme Court nominees. Of course opponents of a Supreme Court nomination would fine-tooth comb every single public argument video the nominee appears in.
It’s not easy being a good appellate judge if you have to weigh every question for how it would play on Fox News or Huffington Post. Asking questions during oral argument is fundamentally different from crafting an opinion. During argument, judges think out loud, they test ideas and limits, and they play devil’s advocate. Sometimes they ask perfectly appropriate questions which, out of context, could be made sensational. They don’t challenge every outrageous argument. And they’re human, so sometimes they say things off the cuff that upon reflection they regret.
All that, plus video can be so much more incendiary and headline-grabbing than dry quotes from an opinion.
Bashman is right that posting argument videos is valuable for lawyers and the public. I share his hope that the pace of video posting increases over time. But I’m content with the procedures the court has in place, and I have no quarrel with the court’s modest start. If I were a Third Circuit judge, I might feel “remarkably cautious” about posting argument videos willy-nilly, too.
A couple years ago, I put together a post about some of the best features of other federal circuits’ websites. One thing I noted was how much easier to use other circuits’ online argument calendars were. The Third Circuit’s old online calendar told you only two things about each case:
- the short caption, and
- the case number
That meant if you wanted to find out if any upcoming oral arguments were of interest, you had to trudge, case by case, through Pacer to find out what the appeal was about and who the lawyers arguing it were. What a slog.
The upshot? As I said at the Judges and Journalists event in November, following the Third Circuit was like driving a car down the highway with the windshield painted over. You could look in the rearview mirror to see what just happened (opinions), but it was a lot harder to find out what was about to happen (oral arguments).
Hurrah! The Third Circuit recently updated its online argument calendar, and what an improvement. Now, for each argued case, the online calendar will tell you:
- the case number
- each party
- each arguing attorney
- brief statements of the appellate issue by each side
Knowing the issues and the lawyers makes all the difference in making it feasible for lawyers, journalists, and the public to follow the work of the court at the argument stage.
To get these details for each case, you click on the case list link on the main page, then click on the case list link on the next page, then, on the arguments page, click on the arrow on the far left next to the case number you’re interested in.
My modest suggestions for improving the online calendar even further:
- cut out the unnecessary intermediate page between the calendar and the arguments page; and
- instead of having a separate arguments page for each day, it would be easier if an entire week’s arguments were on one page.
I don’t know this, but my hunch is that new Chief Judge Smith had a hand in making this happen. I’m sure implementing this change and entering all the case date is a lot of work for the circuit staff.
I appreciate everyone’s work who made this happen, and I applaud the court for this important upgrade.
The Third Circuit today entered an order amending the court’s internal operating procedures to allow for public posting of video recordings of oral arguments. (Chief Judge Smith telegraphed this move in November.) The amended IOP reads:
2.6 Posting of oral argument on the court’s website.
2.6.1 Audio recordings of all arguments will be posted on the court’s internet website unless the panel directs otherwise.
2.6.2 Counsel will be provided an opportunity, either before or after argument, to recommend or to object to the posting of video recordings of oral argument. If the panel is inclined to post a video recording, the clerk will inform counsel and direct counsel to submit any objections by close of business the next day.
2.6.3 While the Clerk will convey to the panel any suggestion from counsel or the public that video recordings be posted for public viewing, the decision on whether to post video recordings for public viewing is within the sole discretion of the panel. No opinion or order need be entered regarding a suggestion that video be posted.
2.6.4 If, after oral argument, and considering the views of counsel or the public if any, the panel unanimously agrees that an argument presents issues of significant interest to the Public, the Bar, or the Academic Community, the panel will direct that a video recording of the argument be posted for public viewing on the court’s internet website.
The key word here is “unanimously.” No video will be posted unless all three panel judges agree to it after the argument. That means any single panel judge can veto video posting in any case or in every case.
And implicit in the new procedure is the near-certainty that video will not be posted the same day as the argument. I expect that will reduce or even eliminate the newsworthiness of the videos that are posted, and perhaps that’s the point.
Howard Bashman posted this reaction on How Appealing:
Unlike the Ninth Circuit, which now posts video footage of essentially all of that Court’s oral arguments on YouTube, the Third Circuit has decided to determine whether video of an oral argument will be posted online on a case-by-case basis, which would seem to add unnecessarily to each oral argument panel’s workload. And, unlike the Ninth Circuit, which has for quite some time live-streamed oral argument video on YouTube, we will have to wait and see how soon after oral arguments the Third Circuit will be placing online the oral argument videos selected for posting.
I anticipate that the Third Circuit will someday move to the Ninth Circuit’s approach of posting videos of essentially all oral arguments online. Here’s hoping that day arrives sooner rather than later.
Howard’s concerns strike me as well-founded, but I’m more skeptical than he is that the court will end up adopting the Ninth Circuit’s approach.
Hat tip to How Appealing for the new procedure; I’m curious how Bashman found out about it because the change does not appear on the court’s announcements page [UPDATE: now it does].
UPDATE: the court just posted this interesting and informative press release shedding light on the origin and goals of the new policy.
I had the pleasure of attending this morning’s en banc oral argument in NCAA v. Governor of NJ. The ceremonial courtroom was packed, and even two of the judges who had recused were in the audience. Circuit advocacy (and circuit judging) is not often a big-crowds gig, so it was an entertaining spectacle.
Judge Ambro (presiding due to Chief Judge McKee’s recusal) opened with a heartfelt tribute to Justice Scalia, saying it was “so true” that he was “transformative” and describing him as “perhaps the greatest influential jurist of my generation.”
Here are a few things that surprised me:
- Judge Barry missed participating by video feed due to technical difficulties, but at the last minute she was able to join in by audio;
- Theodore Olson appeared to be reading his opening, word for word. Not just the opening sentence, but the whole first minute or two. (And later he declined to answer a judge’s direct question about what the recent troubles of daily-fantasy-sports betting meant for his position, saying he didn’t want to get into that.)
- Paul Clement, who gave a virtuoso argument, leaned pretty heavily on legislative history. Heresy!
On a more substantive note, I was surprised that some of the court’s more conservative judges were the source of some of Olson’s toughest questions. I figured the court’s right was New Jersey’s best hope for getting towards the seven votes it needed to win, since a vote for New Jersey could be seen as a vote for state power and for business. But Judge Fisher was plainly dubious of Olson’s position, and Judges Hardiman and Jordan peppered him with tough questions, too.
But for all the little surprises, the bottom-line sense I got from today’s argument was not surprising. I came in doubting that New Jersey could find seven votes, and nothing that transpired during the argument reduced my doubt. We won’t know the result until the opinion(s) are issued, but Clement, the sports leagues, and the government have to feel pretty good about today.
The Third Circuit will be hearing en banc oral argument in two cases on Wednesday: NCAA v. Governor (the sports betting case pitting Paul Clement against Ted Olson), and Chavez v. Dole Food (a civil-jurisdiction issue arising in the context of a suit by plantation workers alleging knowing exposure to toxic pesticides).
A couple interesting facts:
- The first argument is at 9:30 in the Maris courtroom on the 19th floor, but the second argument at 11 a.m. is in the ceremonial courtroom on the 1st floor. Why the big move between arguments? Beats me.
- Recently confirmed Judge Restrepo will sit for both cases, as expected.
- Both cases had panel dissents by Judge Fuentes. Tangle with the pride of Toms River at your peril!
Anyway, the sports-betting case in particular is getting a lot more media attention than the typical Third Circuit appeal. I was even interviewed today by a reporter for ESPN, certainly a first for me. [Update: here’s the ESPN story quoting me.]
One of the questions I was asked today was how often en banc rehearing results in a different outcome from the original panel ruling. (Of course not all Third Circuit en banc cases involve any prior panel ruling, as I’ve discussed here. But the last six CA3 en banc grants have.)
Since Chief Judge McKee became chief, the Third Circuit has decided eight en banc cases in which a panel had issued an opinion. (There was a panel opinion in all four pending en banc cases, too.) Of those eight, the en banc opinion came out the same way as the panel opinion twice (25%); the en banc court effectively reversed the prior panel six times (75%). So that’s a small sample size, but it’s some evidence for the not-surprising conclusion that en banc rehearing en banc is bad news for the panel winner.
NCAA is a case where the panel dissenter was an active judge (Fuentes) and the panel majority judges (Rendell, Barry) are both now senior. (And in Chavez the panel dissenter was active (Fuentes) and the panel author (Nygaard) was senior.) That made me wonder whether active judges fare better in Third Circuit en banc cases. Is it common for active-judge dissenters to become en banc authors and senior-judge panel authors to become en banc dissenters?
Short answer: not really. Of the eight prior-panel cases, only one (Singer Management) fit that pattern, and in fact there were three (Lewis, Katzin, and Flores-Mejia) where the opposite happened. So active-vs-senior hasn’t mattered much in recent Third Circuit en banc case outcomes.
I’m looking forward to Wednesday’s arguments. If my schedule lets me attend in person, I hope to meet some readers and fellow Third Circuit lawyers.
In the 12 months before September 30, 2014, the Third Circuit decided 2,402 cases. It heard oral argument in 238 of them, or 9.9% of its cases. The other 90.1% it decided without oral argument.
So what does that mean?
Well, the Third Circuit heard the fewest oral arguments in 2014 of any circuit. (The circuit-comparison stats all exclude the Federal Circuit.) The D.C. Circuit, which decided about a fifth as many cases, held more oral arguments. The Eighth Circuit, which decided a similar-but-smaller number of cases versus the Third Circuit, held 169 more oral arguments, or over 40% more. Even the Fourth Circuit, the only circuit that held oral argument in a (barely) lower percentage of its cases, held over 100 more arguments. When it comes to number of cases decided on the merits, the Third Circuit ranks 8th out of 12 circuits, middle-of-the-pack. Overall, the Third Circuit granted oral argument half as often as its sister circuits.
What about 2013? Same picture, even a little more extreme. In the year ending in 2013, the Third Circuit decided 2,715 cases and heard oral argument in 225, or 8.3%. Again, fewer oral arguments than any other circuit, and this time the Third Circuit had the lowest argument rate of any circuit.
[For 2015, the AOC hasn’t done the math yet. The raw numbers they’ve released for the 12 months before June 30, 2015 — the most recent data available — show the Third Circuit still holding the fewest oral arguments of any circuit, with an argument rate of 10.7%.]
Whoa, right? But there’s more.
Let’s look at how the Third Circuit’s argument numbers have changed over time. This graph shows the number of oral arguments the court has heard each of the past 17 years:
And here is the percentage of the court’s cases in which it heard argument over the same period:
That second graph shows that the plunge in oral arguments isn’t caused by a drop in the total number of cases. (To the contrary, the court is deciding on the merits 30% more cases per year compared to the late 90s.)
So it’s clear what we’re looking at isn’t any statistical blip: this is a robust trend, a historically significant transformation of the functioning of the court. The Third Circuit hears half as many oral arguments as it did a decade and half ago. A Third Circuit litigant around 2000 was three times more likely to get oral argument than she is today.
Now, I’m not the first one to notice this trend. Howard Bashman wrote this column in the Legal Intelligencer — after a year (2011) when the court heard 82 more arguments than it did in 2014 — arguing that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.” He concluded:
It may require at least a bit more work from the Third Circuit’s judges to slightly relax their current extreme reluctance to grant oral argument, but I cannot help but think that the extra work would yield great benefits in the form of stronger rulings and more satisfied litigants who will know that, win or lose, their arguments have been heard.
As a CA3 practitioner myself, there have been a few times I’ve been disappointed when the Third Circuit decided a case of mine without argument, cases where I believed I had raised substantial appellate issues. But, since I started my practice in 2010, the Third Circuit has heard oral argument in 30% of my cases. So I can’t complain, I’ve actually been fortunate.
But there’s still more to the story.
I’ve blogged here before about how the circuit’s rates for published opinions have dropped and are the lowest in the country. So, how do recent oral argument rates and publication rates compare? Take a look:
Both curves are down from 2009, cratered in 2013, and rebounded a bit in 2014.
Curiously, the circuit’s reversal-rate curve is similar, too:
Coincidence? Or are the similar-looking argument and publication graphs related?
There are some very practical consequences to leaving so many judicial openings unfilled, too, and they have to do with the court’s business. The district courts are the federal trial courts; the circuit courts are where appeals are heard. While the Supreme Court is the court of last resort in the federal system, it only takes a handful of cases each year. So a delay in confirming judges for these lower federal courts means that the business of justice is slowed. A court with two or three vacancies simply cannot meet the demand with the efficiency the parties deserve and that the rules and procedures mandate.
It’s natural to wonder if the plunging rates for argument and publication are related to the unconscionable delays in filling the seats vacated by Judges Sloviter and Scirica in 2013 — over a year before Judge Krause was commissioned, over 2.5 years before Judge Restrepo was. The court faces still a similar delay now, seven months and counting since Judge Rendell went senior, still waiting for a nominee.
As I noted above, the court is deciding 30% more merits cases now than it did in the late 90s — about 750 more per year — yet it hasn’t gotten a single new seat since 1990. When you take a busy court, jack up its caseload by 30%, add zero new judges, and drag your heels filling openings — well, at some point, as Judge Lewis said, there are consequences.
My hypothesis is that we’re looking at two consequences: fewer oral arguments and fewer published opinions. Now, these trends didn’t just appear in 2012 and they’re not limited to the Third Circuit. They could well be unrelated to caseloads and to each other. And the Third Circuit isn’t the only circuit struggling with vacancies. So I haven’t proven that hypothesis here.
But, if I am right, then the root of the problem here isn’t the court: it’s Congress.
[Notes: I’m grateful to top CA3 advocate Brett Sweitzer, among others, for raising my awareness of the oral argument drop at a recent forum of the Third Circuit Bar Association. The oral-argument data cited in this post are from AOC table B-10. The decided-cases data and the 6/30/2015 raw data come from B-1, reversal data come from B-5, and opinion-publishing data come from B-12.]
Next Friday, brand-new Third Circuit Judge L. Felipe Restrepo will sit for the first time as a member of the court. He will sit on a panel with Judges Vanaskie and Shwartz for 3 arguments. This being the Third Circuit, it seems fitting that the first argument case on the docket that morning will be an asbestos-litigation appeal.
The court has a total of four panels sitting next week, and there’s not a single senior or visiting judge in the bunch.
The Third Circuit will hold its first en banc argument of the year on Thursday.
The case is United States v. Jermel Lewis, and the issue in the case is whether it was harmless error to fail to charge in the indictment and present to the jury the facts used to increase the mandatory-minimum sentence.
In the now-vacated panel opinion, Fisher joined by Chagares held that the error was harmless; Rendell dissented. My post on the panel opinion is here.
The argument will be held at 10 a.m. in the Maris courtroom on the 19th floor. I have not double-checked, but I assume arguing counsel remain Paul Hetznecker for the defendant and Robert Zauzmer for the government.
The audio recording of Judge Krause’s very first argument is now up on the CA3 website, here. The case is Shalom Pentecostal Church v. Secretary, and the argument was yesterday. The audio begins with Judge Rendell’s gracious welcome, “we’re so happy she’s part of our Court.”
Before my clerkship, I imagined that any circuit oral argument would a masterpiece of preparation and skill. I still remember the excitement and awe I felt before the first day of arguments.
I was quickly disabused.
But two CA3 oral arguments tomorrow figure to provide that caliber of advocacy.* In the morning, appellate specialist and How Appealing blogger Howard Bashman will argue. The panel is Smith, Shwartz, and Roth. The case is Miller v. SmithKline Beecham, the briefs are here. (And arguing the other case that morning will be Lisa Freeland, the head FPD of WDPa and a top advocate, although both sides are arguing by video).
In the afternoon will be the NFL concussion-suit argument I’ve blogged about here and here. Appearing will be Steven Molo of MoloLamken, Prof. Samuel Issacharoff of NYU Law, and Bruce Birenboim of Paul Weiss, national-profile advocates all. (Public Citizen’s motion for 5 minutes to argue as amicus was denied.) The panel is Ambro, Smith, and Jordan — Jordan replaced Krause after the argument was calendared.
* I’m sure there are other first-rate arguments this week too–I always appreciate a heads-up about CA3 cases to watch.
Appeals nerds rejoice!
Update: and here, from the other end of the oral-advocacy spectrum, is a post on Above the Law on a recent CA5 eyebrow-raiser. If you thought it might help your client to argue, “I think I know a little bit about federal court. Go ahead and tell me, though,” see how it turned out for this unfortunate fellow first.
CA3 just set oral argument for September 10 in the NFL concussion-suit appeal, one of the court’s most-watched cases. The argument is on the petition to appeal of 7 former NFL players, plus amicus Public Citizen, who object to the recent class settlement.
I’ve written about this case here and here, noting the appeal “is fast becoming one of the biggest cases of the year. Among the legal luminaries who’ve now joined the fray are Beth Wilkinson, Samuel Issacharoff, Stephen Rosenthal, and Ted Wells,” joining Martin Totaro, Hangley Aronchick, and Alan Morrison. So it’s a safe bet that the quality of argument will be very, very high.
Adding to the interest is the fact that this will be the first oral-argument sitting for new CA3 judge Cheryl Krause. Joining her on the panel will be Ambro and Smith.
The court is hearing panel oral arguments in Philadelphia this week in two courtrooms. A panel of Rendell, Chagares, and Jordan are hearing arguments Tuesday and Wednesday. A panel of Smith, Vanaskie, and Shwartz sits Tuesday and of Smith, Vanaskie, and Sloviter sits Wednesday. There are 3 arguments each sitting, all starting at 10 a.m.
Doesn’t everyone who clerks for a federal appellate judge daydream about arguing in front of the judge s/he clerked for? Next week, Brian Rabbitt gets to live the dream. He clerked for Hardiman in 2009-10, and on Wednesday he’s arguing before a panel of Hardiman, Scirica, and Roth. Rabbtit is an associate at Williams & Connolly. The case is Carlyle Investments Management v. Moonmouth Co., 13-3526.
Two other appeals (one criminal, one immigration) will be argued the same day with the same panel, the only panel sitting next week. Calendar here.
If I ever create an online legal dictionary, the entry for “hot bench” will just be a link to this recent argument. Holy moly. The case was Mayorga v. AG, a deportation challenge argued April 8.
Start at 8:30 (that’s AG counsel’s argument, after the panel sat Mayorga’s lawyer down early). The resignation in counsel’s voice by 9:09 is priceless.
The panel was Hardiman, Sloviter, and Barry. Arguing counsel were Tad Macfarlan pro bono (assigned by CA3 superstar David Fine) for the petitioner and Anthony Nicastro for the AG, and both did quite well considering.
One of CA3’s bigger pending cases, Williams v. BASF, was argued March 13. The defendants are accused of destroying evidence of products containing asbestos; key appeal issues include choice of law, waiver, and Anti-Injunction Act. One of the arguing attorneys was appellate star and former assistant solicitor general Kannon Shanmugam; another was Eugene Assaf, a former Weis clerk.
At the outset of argument (the audio file is here; panel was McKee, Ambro, and Fuentes), McKee noted the case’s complexity. He said, “I don’t usually ride the clock anyhow,” (0:16) and advised, “Don’t be surprised if the red light goes on and no one asks you to sit down.” (0:30). He wasn’t lying: the argument ran over 2 hours. (True story: a CA3 panel once laughed at me for saying my time had expired.)
I’m a mass-tort nerd from way back, so I’ll be watching the outcome here.
While I’m on the subject of oral advocacy models, here are links to audio for a few other-circuit arguments by elite appellate advocates:
- Gregory Garre, National Environmental Dev. v. EPA (D.C. Cir. Jan. 17, 2014)
- Evan Tager, Bennett v. CSX Transportation (4th Cir. Oct. 29, 2013)
- Paul Clement, Dupont v. Kolon Industries (4th Cir. May 17, 2013)
- Miguel Estrada, Georgia Pacific v. Von Drehle (4th Cir. Feb. 1, 2013)
Yesterday’s Weev ruling reminded me of the fine oral argument given by his pro bono lawyer, Volokh Conspiracist and former Garth clerk Orin Kerr. Audio file here. It’s worth a listen, because Kerr gets a couple things right that a lot of CA3 advocates get wrong.
Kerr’s not treating questions like a nuisance detour from what he wants to be saying. At 2:11 and 3:23 and throughout, he shuts up to let the panel ask another question. So many lawyers try to head off questions, raising their voice and talking fast at the end of their answers to bull their way back into their prepared monologue. When we do that the judges aren’t even hearing our grand orations, they’re thinking about their grand questions and listening for a pause.
Under-prepared lawyers are afraid of questions. Our #1 goal in argument is Don’t Look Stupid, and we figure we’re on safer ground with the speech we prepared vs. the response we’re winging. Kerr’s not winging his responses, so he has the confidence to let the judges take him wherever they want to go all the way til 9:23. That’s rare.
Kerr’s preparation also shows in his direct, clear responses. Direct, like his first answer at 1:45 when the first words out of his mouth state the answer to the judge’s question, and then he gives his explanation. Lesser advocates don’t lead with direct responses, and it drives judges crazy. But getting there takes work: Chief Justice Roberts, who knows a thing or two about oral advocacy, says you need prepared answers to a thousand questions. Lots of us walk in about 990 short.
Finally, notice Kerr’s elegant intro. A crisp 40 seconds that gives the whole core of his argument.