Howard J. Bashman's appellate columns, etc.

Too Much Of A Good Thing -- Oral Argument In The Superior Court of Pennsylvania

By Howard J. Bashman
Monday, December 8, 2003
At the risk of losing my invitation to attend the next gathering of Pennsylvania-based appellate litigation enthusiasts, I have come to the controversial conclusion that the Superior Court of Pennsylvania should stop leaving it up to lawyers to decide which appeals are deserving of oral argument.

As a lawyer whose practice focuses on appellate litigation, I enjoy participating in appellate oral arguments as much as anyone. Indeed, I have been saddened when an appellate court has selected for submission on the briefs appeals on which have I worked. But when it comes to appellate oral argument, there definitely can be too much of a good thing. All appeals do not deserve oral argument. And by allowing all appeals to be orally argued, the court wastes the time of its judges and the lawyers who practice before it and the money of litigants whose cases do not deserve argument.

To understand why the Superior Court of Pennsylvania should alter the method it uses to determine whether appeals will be orally argued, it is useful to compare its procedures with the procedures used by the U.S. Court of Appeals for the Third Circuit, the federal appellate court whose territorial jurisdiction includes Pennsylvania.

Appeals to the Third Circuit are decided on the merits by three-judge panels, and an appeal in which any one of the three judges on a merits panel desires oral argument will be argued. In other words, an appeal will not be submitted on the briefs, without oral argument, unless the three-judge panel unanimously concludes that oral argument would not be beneficial.

Here is how the Third Circuit goes about deciding whether an appeal will be argued. Far in advance of an oral argument sitting, each Third Circuit judge on a three-judge panel will be assigned principal responsibility for conducting a prompt review of one-third of the cases assigned to the panel. The main purpose of that prompt review is to identify cases that should be orally argued. After each judge reports to the others which cases have or have not been selected for oral argument as a result of that early review, each judge will then next read the briefs in the cases that his or her colleagues have not selected for oral argument to see if they disagree with the decision not to request oral argument.

It only takes one judge to set a case for oral argument, and it is common for cases that the first judge did not select to be chosen for oral argument by one of the other two judges. Only after all three judges have read the briefs in a case and individually concluded not to request oral argument will the decision to submit an appeal on the briefs without oral argument be made.

In practice, the Third Circuit's approach results in the selection of the more legally challenging, important, and complex cases for oral argument. Cases that are governed by existing law or otherwise easily resolved are typically submitted for a decision on the briefs, without oral argument. But, it is important to remember, each Third Circuit judge has his or her own view of when a case should be orally argued. As a result, some panels hear oral argument in a much higher percentage of cases than other panels.

By contrast, in the Superior Court of Pennsylvania, the decision whether an appeal will be orally argued is generally left up to the lawyers for the parties. In every category of case but one (habeas corpus appeals), the attorney for the party that has appealed is given the ability to set an appeal for oral argument and determine whether the appeal should be argued for five minutes per side (placing it on what is known as the "expedited list") or for fifteen minutes per side (placing it on the "regular list").

Many lawyers are probably unaware that experienced appellate judges consistently report that oral argument affects the outcome of an appeal in only a small minority of cases. And lawyers are not well equipped to determine whether their appeal is one in which oral argument would make a difference. For example, how is a lawyer to know if the Pennsylvania Superior Court judges assigned to decide an appeal have questions based on the briefing that would cause oral argument to be beneficial to a client's position? If that lawyer were to choose to have the appeal decided without oral argument, he or she would not be able to gain the benefit that oral argument would have provided and perhaps would be sending a signal to the appellate judges that the client does not care deeply about the outcome on appeal.

For all of these reasons, when the decision whether to orally argue an appeal is left up to the lawyers, an extraordinarily high percentage of appeals end up being orally argued. I have argued various appeals before the Superior Court of Pennsylvania in recent months, and each day between twenty and thirty cases were on that day's oral argument list before a single three-judge panel. Typically each panel will sit for oral argument for three consecutive days, during which between sixty and ninety cases may be argued.

To entice lawyers to choose the expedited list with five minutes of oral argument per side, the Superior Court allows the cases on that list to be argued first, before the cases on the regular list to which fifteen minutes per side will be allotted. A five minute oral argument does not provide the judges with much opportunity to ask questions, and as a result the expedited list cases tend to be ones in which the judges listen to the lawyers instead of participating actively through questioning. Sometimes it can take a three-judge panel two hours to get through argument of the cases on the expedited list.

At that point, the lunch hour is approaching, and the judges have been lulled into non-participatory mode just as the more complicated cases on the regular list begin to be argued. Indeed, in my most recent appearance before the Superior Court last month, my case was not called for argument until after 2 p.m., although I and all other lawyers were ordered to appear in court no later than that day's start time of 9:30 a.m. And a half-dozen cases remained to be argued after mine.

The current approach to oral argument in the Superior Court of Pennsylvania causes the judges to become exhausted and dispirited due to the inordinate waste of time that so many of the oral arguments turn out to be, lawyers have their time wasted as cases that should not be argued postpone the presentation of the more deserving cases, and clients are deprived of their hard-earned money having to pay their lawyers to prepare for oral argument and then sit through court (and sometimes to travel a distance to get there) awaiting the oral argument of a case that the court may have no interest hearing argued.

In particular, the time of Pennsylvania Superior Court judges is a precious commodity. That is a notoriously overworked court with a staggeringly large caseload. The hours Superior Court judges spend hearing oral argument of cases in which the judges do not believe oral argument would be beneficial is time that the judges cannot spend writing opinions and focusing on difficult appeals that demand greater attention.

Fortunately, it is not difficult to fix what is broken with the Pennsylvania Superior Court's current method of selecting which appeals will be orally argued. The Superior Court's judges should simply begin deciding for themselves, using the approach employed in the Third Circuit, which cases deserve oral argument. The Superior Court can continue to seek input from the lawyers -- either before or after arriving at a tentative decision whether to allow oral argument -- regarding their preference for or against oral argument, but the lawyers should be required to provide reasons, if they are requesting oral argument, why they believe it is merited.

The system that I favor, where any single judge on a three-judge Pennsylvania Superior Court oral argument panel can select a case for oral argument, would enable that court to avoid having oral argument in appeals that clearly did not deserve it. And if it turns out that in a given sitting all cases deserve to be argued, all cases could be argued. The odds of a sitting in which all appeals merited oral argument, however, would be quite low based on my experiences.

It does not require more work for appellate judges to decide whether a case should be orally argued than it takes to prepare for and engage in oral argument in nearly every case. Rather, it would save the time and effort of judges, not just in the courtroom but also in having to prepare for oral argument in fewer cases.

In conclusion, and at the risk of being regarded as a heretic among longtime Pennsylvania practitioners who cannot contemplate a better way than how things have always been done, the time has come to end the Superior Court of Pennsylvania's practice of allowing lawyers for the parties to decide which appeals should be orally argued. Instead, that court should follow the Third Circuit's approach, in which the appellate judges have the final say regarding whether an appeal does or does not merit oral argument.

This article is reprinted with permission from the December 8, 2003, issue of The Legal Intelligencer © 2003 NLP IP Company.