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Article: April 2015: Appellate Practice Update

Business Litigation Reports

Inconsistent Access to Federal Appellate Arguments. Public access to appellate proceedings has been a hot topic recently, with many in the news media and the general public clamoring for the U.S. Supreme Court to allow video recording or even live Internet streams of arguments in important cases. The Court has thus far rebuffed all such requests, with Justice Antonin Scalia notably explaining that releasing video of its proceedings would “mis-educate the American people,” many of whom (he said) would see only “30 second, 15 second take-outs from our argument, and those take-outs would not be characteristic of what we do.” Yet the Court does provide public access by posting transcripts to its website on the same day as an argument, and audio recordings (though not video) on the following Friday. In important cases, the Court will sometimes even provide same-day audio, as it recently announced it will do for the same-sex marriage cases.

But while Supreme Court arguments are often of great interest to the public, many business litigants and their counsel have far greater interest in obtaining access to arguments before the federal courts of appeals—which decide vastly more cases than the 70 annual merits cases heard by the Supreme Court. In those courts, argument recordings can be vital resources to litigants and advocates alike, and yet access to those arguments varies widely among the federal circuits—a fact that is unlikely to change in the near future, as the federal Judicial Conference’s Committee on Court Administration and Case Management has recently denied a request that it adopt a uniform policy of releasing argument audio on the same day as the hearing. See Letter from Hon. Wm. Terrell Hodges to Mr. Gabe Roth (Feb. 19, 2015), available at http://www.openscotus.com/wp-content/uploads/2015/02/15-02-09-ltr-J.-Hodges-to-Roth-re-courts-of-appeals-audio-files.pdf. In this respect, the federal appellate courts lag behind some state appellate courts; for example, the New York Court of Appeals supplies a live webcast and an archive of argument videos, as do the Supreme Courts of Illinois and Ohio, to name a few.

Among the federal courts of appeals, the Ninth Circuit provides the most expansive access to its proceedings, supplying live streaming video of its arguments and maintaining a YouTube channel with video of recent proceedings. The court also posts audio and video recordings to its website on the day after argument.

No other federal court of appeals yet provides regular video of arguments, though some will, upon request, permit news media to broadcast hearings in important cases. But most circuits—the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, D.C., and Federal Circuits—do provide audio recordings on the same day as argument, or shortly thereafter.

The three remaining circuits, however, have not adopted an online system for providing audio recordings. In those courts, obtaining argument audio can be inconvenient and time-consuming. The Second Circuit will prepare a CD of an oral argument, but only upon written request and payment of a $30 fee. The clerk’s office can take several days or even weeks to prepare the CD. The Eleventh Circuit likewise requires purchase of a CD for $30, and warns interested parties that recordings are only available for arguments held after August 1, 2012, and that they are destroyed after the Court has finished using them. And while the Tenth Circuit posts recordings of some arguments perceived to be of public interest on its website, it does so only on an ad hoc basis. In most cases, the local rules require a person seeking a recording to file a motion stating the reasons for seeking access—a potentially burdensome procedure requiring an attorney with Tenth Circuit electronic filing privileges.

Readier access to oral arguments in all the federal circuits would be most useful. Review of argument recordings can be helpful tools for argument preparation, giving invaluable insight into the questioning styles of judges who might be on one’s panel. And argument recordings are an excellent tool for analyzing the likely outcome of a case after argument. In the absence of a nationally uniform policy, it is to be hoped that all circuits adopt the approaches pioneered by the Ninth Circuit and the most technology-friendly state high courts.