The Federal Circuit is set to start holding oral arguments again for the week of April 6, 2020. The arguments not be in-person but rather conducted via telephone (audio only). The currently conceived setup won’t allow non-parties to listen-in on the conversation but the court is recording oral arguments and has indicated that it “will continue to release same-day audio for all arguments.” Additionally, a substantial number of scheduled arguments have been cancelled with a notice that:
The panel of judges that will decide this appeal has determined that oral argument is unnecessary. See Fed. R. App. P. 34(a)(2)(C).
The cited rule of appellate procedure indicates that a party’s request for oral arguments may be denied based upon unanimous agreement from the assigned panel of three judges agree that “oral argument is unnecessary” because:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
Fed. R. App. Proc. R. 34(a)(2).
The rules of appellate procedure allow for use of “physical exhibits other than documents” during oral arguments. R. 34(g). That’s probably not happening either.
I would hate to be the appellant’s lawyer who had to explain to her client why their case was picked as one where no argument was necessary, even by phone.
Depends on whether you win or lose — win, and you claim you did such an excellent job on the brief that you saved the client the money they’d’ve spent on sending you to DC for the oral argument. Love telling clients my work not only won, but saved them money!
Do orals even make a difference?
Re: “Do oral arguments even make a difference?” That’s a good question some real experts might want to take a crack at here, considering this is supposed to be an educational blog. [Both for the Fed. Cir. and the PTAB.]
One answer has always been “yes, its a good way to LOSE a case.” Especially if you do not know how to immediately handle unexpected questions from judges, or unexpected arguments by your opponent, or cannot handle the interruption and partial elimination of your planned remarks, all in in the brief total time allowed. That brief time does no normally allow “shotgun” arguments of multiple issues. Also, not having memorized the record below is dangerous. But a good demonstrative exhibit can be helpful in some cases if you have a basis for it in the record below. Another answer has been that if only one of the three judges has read the briefs a good oral argument might be useful for your best point in some cases. But it is no substitute for a good brief. But in any case, this is not some lay jury you are talking to. [Take your pick here, disagree, or add others.]
Thanks Paul – I found your post on target and helpful.
I agree with all that, except for the implication that a PTAB or Fed. Cir. three judge panel might have fewer than all three being prepared by at least reading the briefs (i.e., a “hot bench”). The PTAB judges have pre-hearing conferences and the Fed. Cir. judges do not pre-conference but have law clerks to help them go through the cases (with at least bench memos) before hearings. But at bottom, as you indicate, there is a much greater chance of hurting than helping a case by presenting an oral argument. In inter partes cases there are almost always requests for oral arguments because, inter partes. In ex parte cases at the PTAB, there are not a lot of oral hearings. But I’m guessing very few attorneys tell a client that I’m not billing you for an oral argument because I’m not one of those top-10-per-cent super persuasive lawyers and I might hurt your case.
Tough to put your foot in your mouth . . . if you keep it closed (by relying on your plenty-of-time-to-carefully-research-consider-and-write briefs and not your on-the-fly oratory skills).
So why then are orals de rigueur?
Because clients expect / insist on them? If they do, why do they?
So as to not come across as “weak” to your adversary / adjudicators?
Pair Rule 36 with no oral argument and you’re on the slippery slope to the appearance of no due process.
You can be certain that human nature (being what it is) will engender complaints (real AND imaginary) from this ‘by phone’ process.
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