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The Vanishing Oral Argument?

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One of the focuses of the Sixth Circuit over the past year, and certainly at this week’s judicial conference, is expediting the disposition of cases. In that regard, the Court has increased its workload considerably over the past several months, significantly increasing the hearing calendar. The Court has been able to do this by virtue of being fully staffed with 16 judges (a rarity over the past decade plus) and with the strong support of 9 senior judges. Litigants and parties should be noticing cases getting to oral argument faster, and the overall disposition time dropping.

A related aspect to more expeditious resolution, however, is a general curtailment in oral argument. We have previously reported on the recent evolution in the Court’s oral argument practice here, here and here, as it has migrated from allowing argument to any party that requests it to being more selective about which cases receive argument. This has led to an noticeable decline in oral argument.  Under the prior system, roughly two-thirds of the cases were slated for oral argument (many parties waive argument), but that number has now fallen to less than half. To be sure, this could be attributable to a number of factors, such as parties deciding not to devote resources to oral argument, but part of it certainly derives from more rigorous screening of cases by the Court.

Related to this, the Court has been more active in disposing of cases initially scheduled for argument prior to the argument date (a practices that varies from panel to panel). Generally speaking, each panel receives 15 cases for 2 days of argument (active judges would generally sit on two panels in a given week). A few of these cases will be ones where the parties have waived oral argument, but if the panel can resolve some of the cases in advance, it decreases their argument time and frees them up to focus more attention on perhaps more difficult cases. Indeed, a decision in advance sometimes obviates the need for a bench memo, deliberation after argument, and further time spent on the opinion post-argument. This practice has grown more prevalent, with close to 20% of the cases recently be decided prior to the argument date.

 We expect that the oral argument practice at the Sixth Circuit will continue to evolve, and certainly some judges place more of a premium on argument than others. But the point cannot be emphasized enough that it is critical to have a well-written and persuasive brief because it may be the only vehicle by which you can interact with the Court.

  • http://www.grasinglaw.com Ray Grasing

    A well-written and persuasive brief is vital to a successful appeal even if oral argument is guaranteed to occur; you may not have the time, and the court’s questioning may not allow you, to make up for deficiencies in the brief. Sometimes, if the brief is done well enough, it renders the oral argument, even if it does go forward, moot.