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.

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4 responses to “Why Maryland Appellate Courts Should Send Focus Letters Before Oral Arguments”

  1. Michael Wein says :

    Derek,

    It’s an interesting proposal, though I think it would have to be considered as part of a comprehensive analysis on updating appellate court rules and procedures. California’s appellate system for example has these focus letters, but they also decide and delegate appellate arguments very differently. For one, it is my understanding that appellate matters are very much initially examined by the staff attorneys in the multiple intermediate appellate divisions, which is comparable to how some of their trial work is done, in a system very foreign compared with Maryland. Second, California is by far the most populous state, with very different bar requirements compared with Maryland. (That includes that they are the only state in the U.S. that has non-ABA approved law schools, with attorneys licensed to practice law only in California, regardless of the ABA certification, or coming from a correspondence or online law school).

    A lot of the concerns you mentioned, could be better managed with a more directed system of granting Certiorari in Maryland in “some” but not all Cert questions. I know from cases I followed or advised (usually to not include the “weak” QP), that the Court of Appeals does do this, but does not well publicize the practice. So you’re correct, occasionally some cases seem online as if there’s 3, 4 or maybe even more Cert petition questions outstanding. That may be because the Petitioner didn’t follow the conventional appellate advice, including on the Court of Special Appeals pro se manual, to try to limit the arguments to 2 or 3 Questions Presented maximum. However, I have not seen online, the Court usually noting, as the United States Supreme Court regularly does, for example– “Certiorari granted only as to Question Presented # 3”, or similar wording. Perhaps the Md. Judiciary web site should routinely let attorneys know that some cases are being granted Certiorari on not all the Questions Presented.

    in the end, at least for the Court of Appeals, it may not be as interesting orals and it’s difficult to read minds of 7 judges to predict what each thinks before orals, which could complicate their jobs, and at least the aspirational plan to come into the orals “fresh,” particularly if there’s a few retired judges substituting for the active Court of Appeals judges.

    Practically, it may work better at the Court of Special Appeals level, but I don’t know if it’s necessary, unless there’s more than 3 questions presented. I do agree, however, that it would make sense that if there’s a major procedural jurisdictional issue in the case file, that is discovered as potentially concerning at least a few weeks before oral arguments, it may make sense for the Court to let the attorneys know to be prepared to argue something new,

    Alternatively, supplemental briefing could be done. I was appointed as substitute counsel on a 4th Cir. crim. case, that originally did not have any procedural issues, but the Court later determined that “supplemental briefing” was justified on a procedural and possible jurisdictional new Question Presented. I’ve seen this occasionally fluster the attorney arguing the Maryland appeal, say, the timing of a post-trial motion may lead to some jurisdictional difficulties, who was not prepared, because it wasn’t in the briefing, and that could make the oral arguments a lot less effective for everyone. But I think that’s a semi-rare occasion, but could be improved upon when it occurs.

  2. Michael Wein says :

    Here’s an article that helps explain why California’s quite a bit different, to the extent that the system of oral arguments has become quite useless in the vast majority of cases, even with some appellate divisions using focus letters as opposed to “tentative rulings” before orals in other divisions.

    I would be curious as to the ABA’s rationale, as to how a focus letter system has been deployed, possibly with success, in other states.

    http://www.fdap.org/downloads/articles_and_outlines/Seminar2011-AbolishOralArgument.pdf

    • Anonymous says :

      Thank you for the articles. California presents a great example of the unintended consequences of legislation. The “90-day rule” requires the court to issue an opinion within 90 days of submission of the case (typically at the end of oral argument). It presumably was enacted to accelerate appellate decision-making. But all it has really done is delayed oral arguments and diminished their utility. As the articles explain, California appellate judges, pressed by the 90-day rule, now apparently do not hold oral argument until after they have drafted their opinions.
      In December 2017, I argued in the California Court of Appeal. Argument was held more than two years (29 months) after briefing was finished, and the opinion was handed down less than one month after oral argument. It is hard to believe that the decision was not well on its way to completion when the panelists took the bench.

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