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Will Fed. Appellate Courts Ever Allow Oral Argument by Phone or Video?

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Paul84

Member
What is the name of your state (only U.S. law)? New York, federal

I requested oral argument after filing my appellate briefs in the 2nd Circuit and asked for oral argument and to do so by phone or videoconference.

Am wondering if they ever allow that at the appellate level, when you're interacting with three judges, versus the district level when it's just one. Traveling half-way across the globe for a one-hour appearance (at best) is a bit much, although I wrote that I'd be willing to do that, if necessary.
 


quincy

Senior Member
What is the name of your state (only U.S. law)? New York, federal

I requested oral argument after filing my appellate briefs in the 2nd Circuit and asked for oral argument and to do so by phone or videoconference.

Am wondering if they ever allow that at the appellate level, when you're interacting with three judges, versus the district level when it's just one. Traveling half-way across the globe for a one-hour appearance (at best) is a bit much, although I wrote that I'd be willing to do that, if necessary.
Federal Rules of Appellate Procedure, Rule 34:

https://www.law.cornell.edu/rules/frap/rule_34



(Posting history)
 
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cbg

I'm a Northern Girl
Paul, you do realize that these boards are for general legal information, right? That you can't expect to use them as unpaid legal counsel?
 

Just Blue

Senior Member
What is the name of your state (only U.S. law)? New York, federal

I requested oral argument after filing my appellate briefs in the 2nd Circuit and asked for oral argument and to do so by phone or videoconference.

Am wondering if they ever allow that at the appellate level, when you're interacting with three judges, versus the district level when it's just one. Traveling half-way across the globe for a one-hour appearance (at best) is a bit much, although I wrote that I'd be willing to do that, if necessary.
Please define "half way across the globe".
 

Taxing Matters

Overtaxed Member
You need to appear PERSONALLY for oral argument.
That is not always the case. For example, the ninth circuit recently did oral arguments by phone on an appeal of Trumps travel ban. It is unusual, but the courts of appeal may grant requests to appear by phone. They are more likely to do it, however, when both parties appear by phone rather than just one. Note, too, that there is a good chance the court will simply decide the matter on the briefs anyway and not schedule an oral argument at all. The vast majority of appeals in federal appeals courts today are decided on briefs without oral argument. In the 2015-2016 year, only 17.5% of federal appeals cases (other than those heard by the federal circuit) that were decided on the merits were disposed of after hearing oral argument.
 

Ohiogal

Queen Bee
That is not always the case. For example, the ninth circuit recently did oral arguments by phone on an appeal of Trumps travel ban. It is unusual, but the courts of appeal may grant requests to appear by phone. They are more likely to do it, however, when both parties appear by phone rather than just one. Note, too, that there is a good chance the court will simply decide the matter on the briefs anyway and not schedule an oral argument at all. The vast majority of appeals in federal appeals courts today are decided on briefs without oral argument. In the 2015-2016 year, only 17.5% of federal appeals cases (other than those heard by the federal circuit) that were decided on the merits were disposed of after hearing oral argument.
OP requested oral argument however. That means that it is almost guaranteed that he is going to be scheduled for it AND he will have to appear. Trumps travel ban was a quick turn around on oral argument -- not a normal scheduling case -- and that circuit is also spread out across the Pacific. I still believe OP needs to be present and he won't get to argue over the phone.
 

Taxing Matters

Overtaxed Member
OP requested oral argument however. That means that it is almost guaranteed that he is going to be scheduled for it AND he will have to appear.
Most federal appeals include requests for oral argument. But that does not guarantee that oral argument will be granted. The trend over the last 20 years at least has increasingly been to resolve appeals on the briefs without oral argument. I’ll guess that you have not done many federal appeals in the last few years to see this yourself. Look at the statistic I mentioned in my last post. The majority of appeals that are resolved on the merits are now done without having heard oral argument. And this is not because people are not asking for oral argument; it is because the courts are deciding to dispense with oral argument as unnecessary to resolve the issues under Federal Rule of Appellate Procedure 34(a)(2). A key reason for that has to do with increasing case loads of judges as Congress has not seen fit to expand the federal courts to handle the swell of litigation going through them.

I agree that if oral arguments are granted that the chance of the OP getting to appear by phone is remote, but it is not impossible. The courts have the authority to grant that request. All the OP can do is make the request and see what the court decides to do.
 
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Paul84

Member
Most federal appeals include requests for oral argument. But that does not guarantee that oral argument will be granted. The trend over the last 20 years at least has increasingly been to resolve appeals on the briefs without oral argument. I’ll guess that you have not done many federal appeals in the last few years to see this yourself. Look at the statistic I mentioned in my last post. The majority of appeals that are resolved on the merits are now done without having heard oral argument. And this is not because people are not asking for oral argument; it is because the courts are deciding to dispense with oral argument as unnecessary to resolve the issues under Federal Rule of Appellate Procedure 34(a)(2). A key reason for that has to do with increasing case loads of judges as Congress has not seen fit to expand the federal courts to handle the swell of litigation going through them.

I agree that if oral arguments are granted that the chance of the OP getting to appear by phone is remote, but it is not impossible. The courts have the authority to grant that request. All the OP can do is make the request and see what the court decides to do.
Thanks, Taxing
 

Paul84

Member
Whether and How to Cite Supplemental Authority after Federal Appellate Briefing Ends

Two days before I filed my reply brief in the 2d Cir. appellate court, an important federal appellate-level case in another jurisdiction issued an opinion that basically reversed a key precedent my lower court case had relied on in dismissing my claims pertaining to that type of law. I learned of the decision only weeks later when numerous legal blogs started analyzing it. The new ruling relied heavily on interpretation of a recent U.S. Supreme Court case, which I did cite in my reply brief.

Question: if the Court does not grant my request for oral argument, can and should I file some supplemental brief drawing attention to the decision? Or is it better to assume that the 2d Court will be aware of it (since the other appellate-level court cites one of the 2d. Circuit's own rulings), and if not aware, simply wait until they finally decide, in which instance, if the 2d Cir.'s ruling is unfavorable on this issue, I could then raise the point for reconsideration or en banc determination?
 
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