Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, January 29, 2015

Justice Thomas Scolds Circuit Over Unpublished Opinion

Tony Mauro has this article in The National Law Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect." Thomas explains:

The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published....It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

Thomas noted that the Fourth Circuit opinion met at least three of the five possible causes for publication, any of which should have sufficed. The Fourth Circuit’s Local Rule 36(a) provides for publication of any opinion that establishes a rule of law in the Circuit, creates a conflict with another circuit, or is of continuing public interest. Finding that it met all of these, the two Justices express concern that it wasn't published.

The Justices' concern is well-placed but ineffectively expressed. Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments. They have done so for the last forty years, chiding individual circuits or questioning the system itself. This is clearly not having any effect on the circuit's practices, though. The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range. Many of these cases meet the circuits' standards for publication but are not published. Many involve dissents, lengthy explanations or novel applications of the law, or other indicia of being a useful addition to the body of law. And that doesn't even address the notion that every decision, however similar to prior cases, adds something valuable to the law by showing application to slight variations of fact, continued adherence to the doctrine, or simply the "weight of authority."

Individual Justices have expressed dissatisfaction with the system and individual instances of it. , and they should be commended for spotting the problem and speaking out against its harm to appellate justice. But rather than having Justices individually take sporadic shots at the practice, the Court should actually examine it directly, either through one of the cert petitions on the issue or through its rule-making authority. 

January 29, 2015 in Appellate Court Reform, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Monday, January 19, 2015

Transparency Concern Round-Up

Judicial transparency seems to be a popular issue of late, and I thought I'd pass along some recent news items on the issue.

Public.Resource.Org has a new memorandum regarding the PACER system. Drafted as a "Memorandum of Law" in "The United States Court of Appeals for Public Opinion," the document is a cheeky, well-written explanation of the access problems with the PACER system. The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world." It suggests a "national strategy of litigation, supplication, and agitation." The last of these proposes a May 1 day of PACER protest, including various means to bring public dissatisfaction with PACER to the federal courts' attention.

Second, Eric Segall has a post on Dorf on Law examining the U.S. Supreme Court's the Court’s "complete lack of transparency across the range of its official duties." Leading with the example of the court's direct communication with the public timed for 6 p.m. New Year's Eve, the post also examines the courts lack of advance notice of when its decisions in cases will be published, the lack of televised coverage, and other limitations on the Court's transparency.

Third, William Baude has a new piece up on SSRN, Foreword: The Supreme Court's Shadow Docket, which examines "the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity." Ultimately, after review, Baude concludes, "if there is a problem at the Supreme Court, it may be the opposite of the usual narrative. It is on technical procedural and administrative questions when the spotlight is off that the Court’s decisions seem to deviate from its otherwise high standards of transparency and legal craft." This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.

 

hat tip on that last item to the Legal Theory Blog.

 

January 19, 2015 in Appellate Court Reform, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Thursday, January 8, 2015

The Costs and Benefits of Oral Argument: Benefits

So I've appreciated some of the discussion on this blog about the importance of appellate oral argument and arguments for a more robust oral argument docket.  But as a full-time appellate public defender, I have wondered if this analysis is different depending on the type of appeal and litigant.  In that light, I thought I would break down the costs and benefits of oral argument and then see if they are different for different types of appeals and litigants. If they are, it may lead to more nuanced policy recommendations.  Let's start with benefits.

Judges.  As aptly noted elsewhere, there are a lot of tangible and intangible benefits for appellate judges stemming from oral argument. They (hopefully) are able to ask questions that allow them to craft their decisions better (even if not affecting the disposition). It allows them time to sort through potential ramifications of decisions that might be lost without discussion at oral argument. They may be able to hold parties accountable in different ways (i.e. verbally embarrassing a prosecutor for improper argument or causing a lawyer discomfort for procedural missteps).  Oral argument may be the only time some appellate judges sit together in a room, so it may foster collegiality.  And it is an opportunity for extremely isolated judges to interact with lawyers and an opportunity to act "judgey."  So from the point of view of judges, there are many benefits, regardless of the type of case or litigant.

Lawyers.  Do lawyers (not their clients) benefit from oral argument?  Retained counsel (or even appointed counsel who bill by the hour) would seem to benefit financially from oral argument.  These lawyers would get to bill for the preparation, travel, and argument itself, which would seem to be beneficial for most lawyers who value billable hours.  For public defenders like me, there is no financial benefit to oral argument.  I would get exactly the same pay if I had two oral arguments a year and if I had twenty.  There are intangible benefits for lawyers too.  Practice at oral argument can help lawyers get better at their craft (both brief-writing and subsequent oral arguments) and enhance their professional reputation (if they are competent anyway).  And for full-time appellate lawyers, it is also an opportunity to interact with judges and act like lawyers.  So from the point of view of lawyers, there are at least some intangible benefits for all appellate lawyers, but the direct financial benefits only attach to lawyers who are able to bill for the oral argument time.

Media/public.  The media and public benefit from oral argument because it is the only time that the "outside world" gets to see the appellate process at work.  Without oral argument, appellate litigation would be a largely faceless and mysterious process.  The intermediate appellate court in which I practice (the Kansas Court of Appeals) travels around the state, conducting oral argument in community colleges, high schools, and local courthouses.  Part of the benefit of these dockets is that they allow local students and the public the opportunity to attend an appellate case and see a little more of how appeals works.  Every opportunity to enhance confidence in the judiciary is beneficial, regardless of the case or litigant.  I don't know if oral argument actually benefits the media.  It sometimes gives them a story to report, which I guess is beneficial (although, except for Nina Totenburg, I rarely find reporters that do a good job of really reporting on the essence of oral arguments).  Certainly for high profile cases, being able to report on the oral argument would enhance the completeness of the reporting about the case.

Clients.  Do clients benefit from oral argument?  Systemically, this is probably the most important question and it, in some part, turns on the related perennial question, does oral argument matter?  I love hearing different judges answer this question, ranging from an unequivocal "no" to an ambiguous "often."  I think it is important to be precise in this question, though.  The question shouldn't be "does oral argument matter?" or "does oral argument ever change the opinion?"  It should be "does oral argument ever change the disposition of a case?"  That is the most pressing issue for most clients: "Do I win or not?"

Notwithdstanding many judges' response to the question, I am pretty skeptical that oral argument changes the disposition in any significant number of cases.  Why do I think that?  How many legal malpractice or ineffective assistance of appellate counsel cases do you know of that turn on poor oral argument or even missing oral argument? About nine months ago, Kendall blogged about a Seventh Circuit case where a lawyer missed oral argument, apparently lied about it,  and was  chastised by the court.  But if there was a reasonable probablity that oral argument mattered to the outcome of the case, why did the appellate court proceed to decide the case (as opposed to appointing new counsel and resetting the oral argument after enough time to prepare)?  And would that client have been able to sustain an ineffective assistance of appellate counsel claim?  He would have been able to show deficient performance; but I can't imagine how any similarly situated client would be able to show a reasonable probablity that the outcome would be different.  I did a cursory review and could not find any cases finding ineffective asssistance of appellate counsel or legal malpractice (leading to damages) based on poor or missing appellate oral argument.  Maybe some readers can comment if they are aware of any such cases.

Admittedly, this is an nuance that can vary depending on the client. Some institutional clients are not just worried about winning a particular case.  Actually, the particular case may be of very little interest. But the law that evolves from the case may be very important.  For those litigants, oral argument that leads to a refined legal decision may be quite beneficial.  But most of my indigent clients don't really care about the evolving state of the law--they only care about whether or not their appeal will be successful.  I'm not an issue advocate--I'm a client advocate. 

Finally, there may be some intangible benefits for clients from oral argument.  Even if it doesn't matter, it can make a client feel like he or she has had a "day in court" in a way that summary disposition probably does not.  So, from the point of view of clients, aside from the intangible, whether clients particularly benefit from oral argument can depend on the type of litigant.  Institutional litigants are probably more likely to receive a benefit than a case-specific litigant, for whom there is no reasonable possibility of a different outcome.

There may be other actors/institutions that stand to benefit from oral argument.  But when considering the benefits, it seems that institutional litigants (and the lawyers that represent them billing by the hour), likely benefit much more than case-specific litigants and litigants that are primarily interested in the disposition of the case (rather than the development of the law).  The judiciary and the public benefit from oral argument in both types of cases about equally.

Next month.  Costs.

January 8, 2015 in Appellate Practice, Oral Argument | Permalink | Comments (0)

Tuesday, January 6, 2015

Rantanen Post on Transparency Issues in the Federal Circuit

Jason Rantanen has a new post entitled, "The Federal Circuit and Judicial Transparency," on PatentlyO raising specific concerns regarding the availability of opinions and the state of transparency in the Federal Circuit. The post provides examples of transparency problems as well as some possible work-arounds. It's an informative, if sigh-inducing, read.

 

hat tip: Howard Bashman

January 6, 2015 in Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (0)