“Is the court of appeals going to grant oral argument in our case?” Virtually every lawyer who has been paid to appeal a case has been asked that question.
And there are good reasons to want to know. If you are appellant’s counsel, you want every a chance to engage judges’ concerns about your theory of reversal. If you are appellee’s counsel, you will need to be able to set expectations for your client, including about potential costs on appeal. Regardless of which side of an appeal you represent, clients may need to know if they should expect a judgment this fiscal year or next, and oral argument can change the timing of a decision in your case. Maybe you’re just a lawyer who wants to know if he can safely schedule a vacation.
Whatever the reason, hopefully this post can give you an idea of how likely oral argument is in the federal courts of appeals.
The Administrative Office of the United States Courts publishes a trove of statistical data that is easy to access but sometimes hard to digest. Among the data it publishes are annual reports on the number of cases resolved after oral argument. The data is broken down for each of the geographic circuits by the type of case: prisoner petitions, other (meaning not prisoner) appeals, and criminal appeals.
Below is a summary of the grant rate for each circuit by each of those categories for the last calendar year for which we have all data (October 1, 2018, through September 30, 2019).
|Circuit||All Cases||Prisoner Petitions||Other Civil Appeals||Criminal Appeals|
Let me highlight a few numbers in that table.
- The upper tier of oral argument grant rates consists of the D.C. (40.8%), Second (45.0%), and Seventh (44.8%) Circuits. There is a 10 percentage point drop off until the next closet circuit, the Tenth (30.3%). The Second and Seventh Circuits are known for permitting oral argument in virtually every counseled case where the parties request it. (The Second Circuit’s local rules have an exception for certain immigration cases, which default to the non-argument calendar.) The D.C. Circuit’s grant rate is likely a function of the low number of appeals, high number of judges, and complex issues its administrative-law-heavy docket poses.
- The circuits in which you are least likely to receive oral argument are the Third (16.6%), Fourth (12.8%), and 11th (13.3%) Circuits.
- Though the judge-to-appeal ratio may factor into why the D.C. Circuit has a high grant rate, it doesn’t seem to have much explanatory power otherwise. The First (24.9%) and Fifth (24.4%) Circuits have very different workloads but almost identical grant rates.
- If you represent a criminal defendant in the D.C. Circuit—which seldom happens due to the U.S. Attorney’s Office for the District of Columbia’s tiny geographic scope and unique jurisdictional options—you are pretty close to a lock for oral argument (81.1%). While the Second and Seventh Circuit’s de facto “argument for all” policy would actually trump this number, no reported grant rate comes close to this number.
- The most deceptive column in this chart is the column for prisoner petitions. Looking at that column, you’d think there is no chance you will get argument if you are an attorney in a prisoner petition case. But the grant rate for prisoner petitions is for all prisoner petition cases, not just ones with counsel. And the number of pro se prisoner cases is staggering. In the same reporting year as the table above, 86.5% of all prisoner petitions appealed were pro se. If we use the number of counseled cases as the relevant metric for OA grant rate (and are fine with using a number that is a red apples to green apples comparison) then the nationwide argument grant rate in prisoner cases is about 55%. So if you’re an attorney representing a prisoner, it’s actually more likely than not that you’ll receive oral argument.
The views in this post are mine alone and do not represent the views of any of my employers, past or present. Please follow me on Twitter @BryanGividen.