Category Archives: Oral argument

Right-to-film-police appeal is among new argument videos

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.

“Oral Argument in Federal Court Becoming a Lost Art”

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.

 

Two remarkable starts to oral argument

Every once in a while, an oral argument starts off better than the lawyer could have imagined. Here’s how Howard Bashman‘s Third Circuit argument began last Thursday:

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.

Ouch.

Lawyers never know how an argument will go. Sometimes the surprise is a happy one — sometimes not.

Bashman criticizes Third Circuit’s cautious video-posting policy, but I think their caution makes sense

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.

The Third Circuit’s new online argument calendar is glorious

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:

  1. cut out the unnecessary intermediate page between the calendar and the arguments page; and
  2. 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.

Third Circuit will start posting oral argument video, but only for selected cases [updated]

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.

NCAA en banc argument: only little surprises

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.

A few thoughts on Wednesday’s two en banc arguments

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.

Guess which circuit holds the fewest oral arguments. (Hint: it’s the same one that issues the fewest published opinions.)

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:

number

And here is the percentage of the court’s cases in which it heard argument over the same period:

rate

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.

Startling.

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:

argument_09_2

published_09

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:

reversal_09

Coincidence? Or are the similar-looking argument and publication graphs related?

Back in 2011, former Third Circuit Judge Timothy Lewis wrote (the emphasis is mine):

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.]

Restrepo’s first argument next week

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.

En banc argument in criminal appeal Thursday

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.

Two oral arguments of interest tomorrow

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 against Arnold & Porter appellate luminary Lisa Blatt. 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.

NFL concussion-suit oral argument set for September 10

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.

 

Two argument panels this week

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.

 

Upcoming oral arguments

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.

The bench of fire

fire-243693_640

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.

Happy Friday.

Notable pending asbestos appeal, and the argument red-light

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.

More appellate-rock-star oral arguments

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)

 

Oral argument done right in Weev

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.

For more:

Orin Kerr video interviews at scotusblog