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.