Why Maryland Appellate Courts Should Send Focus Letters Before Oral Arguments

By Derek Stikeleather

Appellate practitioners continuously debate the relative value of oral argument. Although most practitioners—and many appellate judges—agree that the quality of appellate briefing matters much more than the quality of oral advocacy, opinions vary considerably on how much oral argument helps. Some contend that oral argument is more trouble than it is worth. Others disagree, believing that oral argument not only often separates winning and losing on appeal but also increases everyone’s faith in the justice system. Both sides of the debate have some good points; I won’t try to declare a winner here.

One fact beyond debate is that federal appellate courts are holding significantly fewer oral arguments. The National Law Journal recently reported data from the Administrative Office of the U.S. Courts charting this steady decline over the last twenty years. Despite significantly more cases being filed now versus then, the raw number of oral arguments per year dropped from 10,357 to 6,913. In the last two decades, the likelihood of having an oral argument in a federal appeal has dropped roughly 40%.

Proof of this long-term trend comes as no surprise to practitioners. But the trend prompted the American Academy of Appellate Lawyers to design and compose a Task Force Report and Initiative on Oral Arguments. It submitted the report to the Judicial Conference of the United States last summer. Admittedly, the Academy created the report based on its strong belief that oral arguments were valuable and should be encouraged. Anticipating that it would recommend more oral argument, the Academy wisely chose to examine what makes oral arguments more (or less) effective and recommend ways for courts and practitioners to enhance their quality.

Focus Letters: What They Are and Why They Help

One of the Report’s recommendations struck me as particularly relevant to appellate practice in Maryland state courts: “Issuing more focus letters where the court gives advance notice to counsel on the issues it is concerned about.” Judges in the circuits that hear the fewest arguments often reported to the task force that oral arguments (1) were unlikely to change their minds and (2) did not provide value relative to the resources they consumed. Too often, in oral argument, the proverbial juice is simply not worth the squeeze. The Fourth Circuit, which hears appeals from the federal District of Maryland, was among those federal circuits least likely to hold oral arguments in a given case. It currently holds oral argument in only 17% of non-prisoner appeals that are decided on the merits. The D.C. Circuit, by comparison, hears 58% of such appeals.

Use of focus letters is one of those rare recommendations that is both relatively easy and inexpensive to implement and widely considered effective at improving oral arguments. First, such letters reduce the expenses associated with oral argument because the practitioner will not have to devote countless hours of prep time to issues that the appellate panel does not plan to discuss. Second, by focusing the parties on the issues that concern it, the appellate panel is far more likely to engage with practitioners who are capable of meaningfully assisting it in reaching the best decision. Most of the federal judges responding to the task force seemed to agree that the incremental increase to a panel’s workload (by having to compose a short letter that it otherwise would not have written before argument) is more than compensated for by the enhanced quality of the argument.

Why Maryland Needs Focus Letters

Maryland’s appellate courts would be especially well-served by making focus letters a more frequent or even routine practice. In the Court of Appeals, orders granting petitions for certiorari often replicate the issues as framed by the petitioners. In many cases, the petitioner has sought high-court review of several independent issues—some of which may not have factored into the decision to grant certiorari and may not interest the court or arise at oral argument. Too often, petitioners skew an issue by begging the question, such as by unhelpfully asking the reviewing court whether it was improper for the opposing party to do something illegal.[1]

As an example of a case that would likely benefit from focus questions, the Court’s May 9 order granting certiorari includes this quintet of issues, as framed by the Petitioner:

Issues – Administrative Law – 1) Did Respondent err in terminating a voucher without affording procedural due process guaranteed under federal and MD administrative common law?[2] 2) Does a MD charge of second degree assault constitute “violent criminal activity” and grounds for voucher termination? 3) Did Respondent err in interpreting its policy to require notice within two weeks of an unplanned and unforeseen absence from the housing rented with the voucher? 4) Is breach of a financial obligation that had been cured adequate grounds for voucher termination? 5) Did Respondent err in failing to explicitly consider all relevant facts before voucher termination?

Although it is possible that the Court plans to address all five issues, it is more likely that fewer than five issues—perhaps only one issue—drew the Court’s attention as worthy of review. As it stands, the parties will have to not only brief this broad array of issues but also prepare oral arguments for each one.

After the Court reads the briefs and researches the relevant statutes and case law, it will most likely have a narrower set of questions for the parties—questions that the judges may even carry with them to the bench as oral-argument notes. A short letter to the parties, two weeks before oral argument, presenting the major questions that the Court considers unresolved would significantly improve the quality of the arguments. It would certainly give each advocate the best chance to direct the Court to the most pertinent pages of the record and meaningfully interact with the panelists on the points that most interest them. All would benefit.

[1] Appellate practitioners should know—and avoid—the popular misuse of the phrase “beg the question.” Question begging is stating a desired answer as a question’s premise. It is not good advocacy because it is not helpful to the reviewing court. Examples include: “Is it unlawful to murder one’s friend?” “Did the trial court err by denying due process?” “Can the CEO waste corporate assets in violation of his fiduciary duties?” More commonly, people (including many attorneys and judges) erroneously use the phrase “begs the question” as shorthand for “leads to the next question” or “raises another question.” Examples of such misuses would be “they are grilling burgers, which begs the question ‘What drinks should we bring?’” or “the Ravens play at 8 pm in Green Bay, which begs the question ‘Will cold weather be a factor?’” Those are perfectly fine follow-up questions, but they are not “begged” questions.

[2] Issue 1 truly begs the question. Of course, no one can deny “procedural due process guaranteed under federal and MD administrative common law.” If the right at issue is truly “guaranteed” by “law,” there is nothing left for the court to decide. Although appellate practitioners want to lead the reviewing court to a desired conclusion, there is little to be gained by presenting the desired conclusion as an established premise of the question.