When the Appeals Court Prescribes a Double Dose of Oral Argument

, The Legal Intelligencer


Upon Further Review

On Wednesday, I will have the pleasure of orally arguing two entirely separate appeals before the same three-judge panel of the Superior Court of Pennsylvania. Although arguing two separate appeals on the same day remains a relative rarity for me and perhaps most other attorneys, I have now done this enough times that I can offer the following insights.

At the top of the oral-argument food chain is the U.S. Supreme Court. Being assaulted with especially challenging questions from as many as eight different directions (as Justice Clarence Thomas traditionally does not ask questions at oral argument) from justices who themselves or through their law clerks have mastered the record in a case requires the advocate to have a nearly unlimited knowledge of the facts, procedural posture and relevant law. Perhaps for this reason, the U.S. Supreme Court never schedules the same attorney to argue two unrelated cases on the same day.

Indeed, in a given two-week oral argument session at the U.S. Supreme Court, it is rare, but not unheard of, to see the same attorney argue one case toward the start of an oral argument session and then argue a second case toward the conclusion of the second week of the session. Perhaps because I was most familiar with the U.S. Supreme Court's oral argument practices, I was taken by surprise the first time that the Pennsylvania Superior Court scheduled me to deliver oral arguments on consecutive days before two different three-judge panels, one sitting in Philadelphia and the second sitting in Harrisburg, Pa.

Both cases involved appeals arising after trials had occurred. The records in both cases were very large. In the first case, my clients, the plaintiffs, had prevailed before a jury at trial, but the trial judge granted judgment notwithstanding the verdict in favor of the defendants. In the second case, my client was the defendant in a criminal case who was appealing from a judgment of conviction, but he had what seemed to me to be a very strong constitutional argument based on the confrontation clause in support of a new trial.

Because both cases were going to require extensive preparation, and because it was very possible that I might not be finished with the first oral argument until late in the day on a Tuesday, before having to commute to Harrisburg to be present for the oral argument of an entirely separate appeal the next morning, I asked my client in the criminal case first if he would approve my requesting a postponement of the argument of his appeal until the next argument session. There were two reasons why I asked him first before asking in the civil case. First, I knew that my clients and co-counsel in the civil case were unlikely to agree to a postponement. And second, the three-judge panel assigned to my convicted client's appeal was a much better draw for the prosecution than for the defense.

Fortunately, both my client in the criminal case and the prosecution were willing to agree to the postponement of that oral argument until the next argument panel in Harrisburg, which allowed me to prepare separately and thoroughly for both oral arguments in a way that did not interfere with one another. Even better, the panel ultimately assigned to hear and decide the criminal appeal was a far better draw for my client, and he won his appeal, as did my clients in the civil case.

My next double-booking for an oral argument was even less convenient, and there was far less I was able to do about it. For the first day of its September 2011 oral argument term, the Supreme Court of Pennsylvania decided to hold a ceremonial session at Old City Hall. This was also going to be the very first televised session of Pennsylvania's highest court. As luck would have it, I ended up with two separate and unrelated oral arguments before the Supreme Court on that historic day.

Fortunately for me, the issues in each case, while undoubtedly important, were rather limited in scope, and thus it was neither impossible nor horribly inconvenient to prepare to argue both cases on the same day. Moreover, the court had scheduled several cases between my two oral arguments, so I had time to refocus my attention on the second case after completing my argument of the first case. What I learned that day was that not only was I quite capable of orally arguing two separate appeals on one day, but doing so actually can be quite fun. Connecting with appellate judges at an oral argument can be one of the most satisfying aspects of appellate litigation, and, at the risk of belaboring the obvious, two good oral arguments are even better than only one.

Although my first double dose of oral argument occurred more than two years ago, the outcome remains partially undecided. The case I argued second was decided first, in under a year's time, and the result was 4-3 against my client. Since then, Pennsylvania's legislature has begun the process of overturning the court's result by means of a constitutional amendment, so my client's position still might ultimately prevail. In the second case, no ruling has yet been issued, and many suspect that the court may be divided 3-3, which would at least mean that the victory my client achieved in the Superior Court in that case would survive.

My next potential opportunity to argue two unrelated appeals on the same day arose in a different way. A law firm that I had previously done some appellate work for had a case that was scheduled for reargument en banc (before a larger panel) in the Commonwealth Court. Separately, I was representing the appellant in a case that was assigned in the first instance for oral argument before the same en banc Commonwealth Court panel on the same day.

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