Howard Bashman, who writes the How Appealing blog, has written a very instructive article about how oral argument in the Third Circuit has become increasingly rare since the court year that ended on September 30, 2002. That article can be found here.
In the year ending September 30, 2002, 25% of cases terminated on the merits were argued orally. Bashman traces what was at first a relatively small decline in oral arguments to changes in the status of former Chief Judge Becker, who especially “valued the benefit of oral argument.” Chief Judge Becker took senior status in May 2003, which would normally mean a reduction in the number of panels to which he was assigned, and died in May 2006. The percentage of oral arguments gently glided downward during that time (though it actually increased in one year), falling to 22.4% in the year ending September 30, 2005, Judge Becker’s last full term, and to 19.5% in the following year, during which Judge Becker died.
The next year, the figure was near 16%, where it hovered for each of the following two years. But in the year ending September 30, 2010, the rate was 13.9%, and the next year it decreased to 12.9%, barely more than half of the 25% for the year ending September 30, 2002. The absolute number of appeals decided on the merits that were argued also declined from 2002 to 2011, even though the total number of appeals decided on the merits increased from 2002 through 2011, the last year for which Bashman cites statistics.
Bashman concedes that “the overall availability of oral argument in the federal appellate courts (excluding the Federal Circuit) declined from 32.9 percent at the start of the 10-year period to 25.1 percent at its conclusion.” But there were “little or no changes” in that figure in four Circuits: the D.C., Fifth, Seventh, and Tenth. Bashman says that the Third Circuit seems to have had the greatest percentage rate decline during the ten-year period.
The article allows for the possibility that “too many cases were being set for oral argument during the Becker era,” but contends that “the pendulum has swung too far in the other direction.” Unlike in the Appellate Division, where Rule 2:11-1(b) provides, in somewhat roundabout fashion, that “appeals shall be submitted for consideration without oral argument, unless argument is requested by one of the parties within 14 days after service of the respondent’s brief or is ordered by the court,” thereby largely leaving the choice of oral argument or not to the parties (in fact, to just one of the parties), Third Circuit Local Appellate Rule 34.1(a) gives the judges the right to dispense with oral argument if the panel “is unanimously of the opinion that oral argument is not needed.”
Bashman writes that he in fact favors allowing “the appellate judges, rather than the appellate advocates, [to] decide whether a case will receive oral argument.” But he rightly concludes that “the growing rarity of oral argument at the Third Circuit should be viewed with increasing concern.”