Martin chaired the appellate academy's task force and initiative on oral argument. Hoping to spark a discussion with the Judicial Conference of the United States, the judiciary's policymaking arm, he sent copies of the academy's report this summer to Chief Justice John Roberts Jr. and to the chief judges of the U.S. federal appeals courts.
The academy has become concerned about the decline in the number of cases, particularly in the federal courts, that are scheduled for oral argument and the shrinking time allotted for their argument. The task force examined oral argument practices in the federal circuits and conducted a statistical analysis to evaluate the frequency of arguments and the types of cases being argued.
Federal Rule of Civil Procedure 34(b) begins with "oral argument must be allowed in every case," subject to certain exceptions. But the task force's statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.
Thursday, October 19, 2017
Why are there so few oral arguments?
The National Law Journal is covering the story of the vanishing oral argument. It's not just trials that are going away, but appellate advocacy is dying as well. For example, the 11th Circuit hears oral argument in less than 20% of its cases. That's just AWFUL. From the NLJ: