Law360 (May 18, 2020, 5:43 PM EDT) --
Most appellate judges relish the opportunity to dig deeper into any gaps that may have been left by the briefs. Some feel their time is wasted by an advocate pursuing his or her own agenda, rather than trying honestly to answer the court's questions and assist the court in reaching the best decision in a case.
And, sometimes, circuit judges are correct in this regard. Regardless, oral argument is a gift. It affords the advocate a limited opportunity to speak directly to the decision makers, to find out what really troubles them about your, or your opponent's, argument.
Some former appellate clerks, the authors included, will tell you it is extremely difficult to win a poorly briefed case on oral argument, yet, extremely easy to lose even a well-briefed case by failing to address the court's concerns directly. Regardless of your perspective, oral argument is a fixture of appellate practice.
And in no circuit is it as taken for granted that oral argument will be granted, as it is in the U.S. Court of Appeals for the Federal Circuit. In most circuit courts of appeals and in the U.S. Supreme Court, not every case is argued. The Federal Circuit, however, has maintained a unique tradition since its inception. In virtually every case in which the party is represented by counsel, the parties are provided an opportunity for oral argument. This is not the common practice among the circuits. Oral argument has come to be expected at the Federal Circuit; it is viewed by the bar as almost an entitlement.
This is not the case for the other courts of appeals. Data published by the Administrative Office of U.S. Courts establishes that the Federal Circuit is alone among the U.S. courts of appeals in liberally granting oral argument. Indeed, during the 12-month period ending on Sept. 30, 2019, the regional courts of appeals granted oral argument in only 20.4% of cases.
The percentage of cases that were orally argued ranged from a high of 45.1% for the U.S. Court of Appeals for the D.C. Circuit (468 cases) to a low of 11% for the U.S. Court of Appeals for the Eleventh Circuit (3,276 cases). Due to the manner in which the courts are budgeted (the Federal Circuit and Court of International Trade are covered under a separate budget from the Supreme Court, regional courts of appeals and district courts), the Federal Circuit does not report its data in the same manner as the balance of the courts of appeals.
Throughout its existence, the Federal Circuit has generally granted oral argument in appeals where the parties were represented by counsel. Enter COVID-19. For the first time, this tradition is changing. Not only has the form of oral argument changed — from live, in-person advocacy to telephonic hearings — but the frequency with which oral argument is granted is also changing.
Under the COVID-19 restrictions, it has dropped to a level comparable to that of some of the other regional circuits. Will oral argument continue to be granted? If so, how will it compare to live, in-person argument? And will it affect the production of and level of detail in the court's written opinions?
The court's original calendar for court week in May included 72 cases, including only 13 cases to be submitted on the briefs (without oral argument). This represented 82% of the cases submitted for decision after oral argument. Following the COVID-19 calendar corrections, only 26 cases were scheduled for oral argument, or a total of about 38%. Each of these cases was argued telephonically. No live, in-person oral arguments are scheduled to be held, due to the COVID-19 restrictions.
The court's original calendar for court week in June included 66 cases, and only 13 to be submitted on the briefs without oral argument. This represented 80% of the cases submitted for decision after oral argument. Following the COVID-19 calendar corrections, only 35 cases were scheduled for oral argument, or a total of about 49%. All of these cases are scheduled to be argued telephonically. No live, in-person oral arguments are scheduled to be held, due to the COVID-19 restrictions.
In view of the COVID-19 outbreak and the low rate of oral arguments among other U.S. courts of appeals, it is reasonable to ask whether the current Federal Circuit practice of limiting oral argument will continue. If so, which cases will qualify, and which will not? And does it matter?
As Law360 articles have illustrated, the telephonic oral argument experience has generally been positive. But is it the same? Although better than having no opportunity to directly address the court's concerns, it is more austere than live, in-person argument. Having argued multiple cases live, by video and telephonically, we always appreciate any opportunity to address the court directly on the issues being submitted.
But let's not kid ourselves. Although it is generally positive, it is not the same. A live, in-person oral argument provides a rich opportunity to communicate effectively, incorporating multiple verbal and nonverbal cues, even in the context of a formal appellate argument.
As we move to video and telephonic hearings, we retain a lower resolution image or none at all. We retain the spoken word and tone of voice, but we lose substantial depth without the facial expressions, body language and potential interactions between the panelists. And, although this is nonetheless welcome, it is a thinner, more spare way to communicate with the court.
Given this initial feedback, is it reasonable to expect that, following a lifting of the COVID-19 restrictions, the court will reduce the rate at which it grants oral argument? The court's internal operating procedures afford substantial discretion whether to grant oral argument. Federal Circuit internal operating procedure 7.2 provides in pertinent part:
(a) The appeal is frivolous; or
(b) The dispositive issue or set of issues recently has been authoritatively decided; or
(c) The facts and legal arguments are presented adequately in the briefs and record, and the decisional process would not be aided significantly by oral argument.
The court's internal operating procedures would readily support substantially reducing the grant of oral argument, as well as a return to the pre-COVID-19 practice of liberally granting oral argument.
Another potential impact is the court's approach to issuing written opinions. Historically, the court has issued a written opinion in cases submitted on the briefs, without oral argument. For cases submitted following oral argument in which the outcome is relatively clear and no new issues of law are raised, the court typically issues a substantial number of affirmances under Federal Circuit Rule 36 — an opinion, without explanation, simply affirming the judgment below.
And, as the substantial majority of the court's decisions are affirmances, this Rule 36 practice relieves the court of what might otherwise be a substantial burden of written opinions.
Based on the court's pre-COVID-19 practice, a decrease in the proportion of cases in which oral argument is granted may result in a decrease in the number of Rule 36 affirmances and an increase in the total number of written opinions (albeit shorter opinions). Reducing the proportion of cases in which oral argument is granted may actually increase the number of written opinions because the number of cases submitted on the briefs increased. It may also reduce, on average, the length and detail provided in these opinions in unargued cases.
Any long-term change in the court's procedures may be affected by how quickly and to what degree the COVID-19 pandemic recedes and we return to normal business operations. If the country returns to normal by this summer, which the authors anticipate is less than likely even if governmental restrictions are lifted, the court may quickly revert to its former practice. If the recovery is slower, or a second or third wave of COVID-19 infections occur, the court may have to continue a reduced oral argument calendar. If this reduction persists, it may become the new normal.
We would regret this lost opportunity. Oral argument provides a unique opportunity for the advocate to speak directly to his or her decision maker, to answer their questions, to resolve his or her concerns, to reassure him or her that the rule of law he or she espouses is a sound basis for decision. We will all — bench and bar alike — lose something important in the judicial process without it.
Patrick Coyne is a partner and Benjamin Saidman is an associate at Finnegan Henderson Farabow Garrett & Dunner LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Table B-10, "U.S. Court of Appeals—Cases Terminated on the Merits After Oral Arguments or Submission on Briefs, by Circuit, During the 12-Month Period Ending September 30, 2019 ," available at https://www.uscourts.gov/sites/default/files/data_tables/jb_b10_0930.2019.pdf.
 https://www.law360.com/articles/1263101/lessons-from-1st-attys-to-argue-at-the-fed-circ-by-phone; see also https://www.law360.com/ip/articles/1268514/what-s-changing-at-the-remote-fed-circ-.
 U.S. Court of Appeals for the Federal Circuit Internal Operating Procedure 7.2.
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