As we previously reported, we are presently exploring the issue of case management in the Sixth Circuit and considering various facets of how the Sixth Circuit internally handles its cases.  One issue that attracts significant attention is the Circuit’s practice with respect to oral argument.

As we discussed in our interview with Sixth Circuit Clerk Len Green, the practice regarding oral argument is undergoing some change at the Court.  Historically, any party (other than pro se parties) that wanted oral argument at the Sixth Circuit would receive it if they simply made the request.  But that is starting to change.  Some panels of the Sixth Circuit are actually deciding cases before a scheduled oral argument.  That happened to us recently in a Criminal Justice Act case that we were handling by the Court’s appointment.  The Court issued its decision just over a week before oral argument was supposed to take place.  (But we won, so we didn’t have any grounds for complaining!).  Anecdotally, this is starting to happen more and more.

We expect to see a more rigorous scrutiny of cases for oral argument over the next five years.  The Court is realizing that its docket can move more quickly if it does not give every party the chance for argument.  And, of course, many cases simply do not warrant argument, notwithstanding the desires of the parties.  All of this suggests that parties need to start paying more attention to the request for oral argument in the brief.  Counsel will need to more affirmatively make the case for argument than in prior years.  And since the Court’s rules limit the request to a single page, the pitch must be succinct and powerful.