Monday, March 12, 2007


Perhaps there isn't an old adage admonishing against getting in the middle of an argument between a judge and a dead guy. If not, I'm about to explore whether there should be.

Anyone who doesn't know what I'm talking about should look at the comments to Nelson's Right Eye's post about CAAF's Fiscal Year 2006 report. NRE observed (with one eye, no less) that NMCCA held 10 oral arguments in FY06 and averaged 9.6 arguments per year over the past five fiscal years. The Air Force Court reported 13 oral arguments last fiscal year. This led NRE to ask: "are the numbers low simply because counsel don't request oral argument (either for tactical reasons or in an effort to avoid futile hours of preparation for a quixotic exercise)? Or are the courts denying motions for oral arguments?"

The No Man observed that in his recollection, NMCCA "denied oral argument routinely."

As part of a much longer comment addressing several aspects of practice before NMCCA, Guert reported that "attorneys of the Navy-Marine Corps Appellate Defense Division request oral argument frequently, and these requests are almost always denied."

Guert's post drew a reply from CJW -- one of our newest, one of our most welcome, and certainly our most surprising contributor. CJW noted his scepticism about unsupported broad assertions. He noted that counsel have requested oral argument in very few of the cases that have come before him and observed that his panel routinely grants requests for oral argument.

I'm in a very Bill Jamesian mood, having gone to my first Spring Training game ever today, in which my beloved Washington Nationals vanquished the visiting Mets. I would love to do a complete analysis of oral argument requests, grants, denials, and sua sponte orders on a service-by-service basis. But that is beyond my capabilities on a laptop in a hotel room in Lake Buena Vista. So here's what I did tonight. I searched LEXIS's CCA file for the last two years using this search query: "motion w/10 oral! w/4 arg! w/10 denied or deny and date aft march 12, 2005." The search produced nine results -- interestingly, all from the Navy-Marine Corps Court. Here are the nine cases:

1. United States v. Carlson, 2006 CCA LEXIS 27,*3 (N-M. Ct. Crim. App. 14 Feb. 2006) (“n2 We have also considered the appellant's motion for oral argument. The appellant's motion is hereby denied.”}.

2. United States v. McClelland, 2006 CCA LEXIS 6, *2 (N-M. Ct. Crim. App. 24 Jan. 2006) (“n1 The Motion for Oral Argument submitted by the appellant on 23 July 2004 is hereby denied.”).

3. United States v. Davis, 2005 CCA LEXIS 333, *1 (N-M. Ct. Crim. App. 3 Oct. 2005) (“The appellant's motion for oral argument is denied.”).

4. United States v. Williams, 2005 CCA LEXIS 289, *4 (N-M. Ct. Crim. App. 14 Sep. 2005) (“n3 The appellant's Motion for Oral Argument, filed on 15 November 2004, is denied.”).

5. Graves v. United States, 2005 CCA LEXIS 269, *2 (N-M. Ct. Crim. App. 26 Aug. 2005) (“We have considered all the filings by the parties. We grant all motions to attach and deny the petitioner's motion for oral argument.”).

6. United States v. Szymczyk, 2005 CCA LEXIS 184, *19 (N-M. Ct. Crim. App. 23 June 2005) (“The appellant's Motion to Request Oral Argument of 14 October 2003 is hereby denied. “).

7. United States v. Ashley, 2005 CCA LEXIS 168, *2 (N-M. Ct. Crim. App. 26 May 2005) (“n1 The appellant requested oral argument concerning the legal and factual sufficiency of her conviction. This motion is hereby denied.”).

8. United States v. Trujillo, 2005 CCA LEXIS 157, *20 (N-M. Ct. Crim. App. 16 May 2005) (“n6 The appellant's Motion to Request Oral Argument of 3 October 2002 is hereby denied.”).

9. United States v. White, 61 M.J. 521, 522 (N-M. Ct. Crim. App. 2005) (“n1 . . . On 5 November 2004, the appellant requested oral argument. That motion is hereby denied.”).

So over the last two years, NMCCA averaged 4.5 known oral argument denials. Of course, the actual number of oral argument denials is probably higher, since NMCCA no doubt denied oral argument in some cases that were not posted on LEXIS -- and may have denied some additional oral arguments in cases that are posted on LEXIS without noting the denial in the opinion or using a phrase that didn't fall within my search term. But in any event, since according to NRE, NMCCA averages 9.6 oral arguments annually, an annual denial rate of 4.5 oral arguments already seems rather high.

Two things are striking about the search's returns. First, every case that the search found was from a Navy-Marine Corps Court case. Making a similar search with an unrestricted date term reveals that the last non-Navy-Marine Corps opinion to use the search phrase was an Air Force Court decision released 11 September 2001. United States v. Philidor, 2001 CCA LEXIS 251, *2 (A.F. Ct. Crim. App. 11 Sep. 2001) ("We denied his motion for oral argument.").

Second, the last case revealed by the search is more than a year old. Of course, it is possible that NMCCA has denied oral arguments since Valentine's Day 2006. But the data present the possibility that NMCCA's practice has shifted over the last year (or possibly that counsel have reduced their number of oral argument requests). Perhaps NMCCA manning levels led to a spike of oral argument denials during calendar year 2005, followed by greater receptivity to oral argument as the bench strength (pun intended) grew.

Let me hasten with the caveat that Bill James would do much, much more to investigate the various CCAs' oral argument practice. But based on the preliminary research -- which shall henceforth be referred to as The Lake Buena Vista Project -- there does seem cause for concern that NMCCA denied a large number of oral argument requests in 2005, cause to investigate further whether this trend was idiosyncratic to the Navy-Marine Corps Court, and cause to investigate whether NMCCA has been more receptive to oral arguments over the course of the last calendar year. But those are questions better researched on days when I have tickets to see the Nats at RFK rather than at Space Coast Stadium.


Jason Grover said...

I am sure that the practice has changed now that NMCCA has more judges and less backlog, but in the past it was also common for motions for oral argument to just go into a black hole. In United States v. Quintanilla, the Court did order oral argument, but only after the request was pending with NMCCA for years. United States v. Carlson, a case that CAAFlog mentions, was another one where the request was made well over a year before it was denied, as I recall in a footnote in the opinion. Mr. Frank Spinner was the lead counsel in that case (an example of even a civilian not getting oral argument). It was very discouraging for counsel to request oral argument and then just have the request go into limbo. Quicker response times by the Court on motions will probably, over time, lead to more motions.

No Man said...

Considering that I have not practiced before the NMCCA in almost 3 years, and that my requests for oral argument comprise 20% of the Lake Buena Vista Project results, I think I have a basis to make the following observation. The issue of counsel requesting oral argument was certainly not back log related. Counsel in the 40-70 case per counsel days requested oral argument routinely. If they did not, they should be ashamed of themselves, especially if they thought the issue was of some importance. If the court's reason for the relatively high denial rate is back log, the court should be ashamed of itself. An appellate court with fact finding power should want to entertain oral argument regardless of the size of its case load--particularly in cases deemed important enough to merit a published opinion (another statistical anomaly at NMCCA that we have discussed earlier). Oral argument should lead to a better exposition of the law. Air all the grievances, other than just at Festivous, and ask all the tough questions. NMCCA's should see itself as an uber motions court. Because they have fact finding power, their oral argument % should be very high. The LBVP results and preliminary findings are, thus, right on the money.

egn said...

When I arrived at Navy-Marine Corps Appellate Defense about 5 years ago, the more seasoned counsel told me that NMCCA only granted oral argument on factual sufficiency issues. Sure enough, during my first couple of years there, the cases that were orally argued before that court more often than not involved factual sufficiency. Whether or not that was the result of a self-fulfilling prophecy, I don't know.

Anonymous said...

This blog seems to constantly use the bait and switch approach to swooningly praise these Navy and Marine (and Court of Appeals) judges and wax over the statistical unlikelihood that the judges are reading this site for routine rulings, then throwing topics in front of the judges that are constantly under their consideration and which you wish would be found more frequently in your favor. Doesn't this verge dangerously close to attempting to influence the judges and also near the ABA Model Rule 3.5 ex parte communications (even if the cases aren't ongoing, there must be motions for oral argument that you all are frustrated over?).

CAAFlog said...

Anonymous raises a very interesting point that deserves some searching analysis. I invite everyone to join in.

I haven't practiced before either NMCCA or CAAF since 2003, so I don't think I could engage in "ex parte" communication as that term is typically used.

But Anonymous's question implicates the issue of how existing rules should be applied to a new medium.

I think blogs are probably best analogized to very frequenly published law journals with amazingly poor production quality and quite lax standards for accepting submissions.

Many lawyers -- myself included -- have written law review articles advocating that courts adopt particular changes to the law. Such law review articles are generally accepted as permissible in our legal system.

Any concern with "ex parte" communication is reduced because the law review article -- like the blog entry -- is generally available for everyone to read. What we don't know is whether a particular judge in a particular case has, in fact, read it. But court decisions frequently cite law review articles that weren't called to the court's attention by either party. This suggests that judges reading law review articles -- and even judges being influenced by law review articles -- is an accepted practice.

One of the principal differences between the blog context and the law review context is the frequency of anonymous communication in blogs. There have been some interesting discussions about the pros and cons of anonymous posting, such as on SCOTUSblog when it switched from allowing anonymous comments to prohibiting them, or on The New Republic's blog -- the Plank -- when it considered but rejected such a change. Of course, the issue of sock puppeting also arises in an anonymous posting context.

Let's run through a few scenarios to flesh out the ethical discussion. When I initially posted a commentary on CAAFlog urging CCAs to put their opinions up on the Internet more quickly, I didn't think anyone with the power to change practice would even read my words, much less act on them. I was just electronically howling at the moon. But shortly after my post appeared, the Air Force Court began to post its opinions more quickly. Now I have no idea whether this change actually resulted from my comments -- it could have been a coincidence. Sometimes when you go to bed at night and the street is dry and you wake up in the morning and the street is wet, a water main broke overnight. But let's assume for the moment that AFCCA changed its practice because of commentary on CAAFlog. Is anything wrong with that?

Now let's take the recent debate about whether CCAs should hold oral arguments more frequently. Would there be anything wrong with a Navy-Marine Corps Appellate Defense Division counsel writing an article in the Naval Law Review noting the number motions for oral argument, the percentage of grants, the percentage of denials, and urging more oral arguments? I think not. Does the answer change if the same article appears on a blog rather than in the Naval Law Review?

Most CAAFlog commentary consists of post-hoc kvetches over or compliments for particular military appellate decisions. This is virtually identical in concept to the myriad analyses that fill the pages of our nations law reviews. Is there any difference if such analysis appears online rather than on dead trees?

I would be very interested to hear from Anonymous pointing to any particular blog discussions that might implicate ethical issues and whether anonymous posting renders unethical any commentary that would be permissible if the author were identified.

I would also be interested to read others' thoughts on Anonymous's provocative questions.

Jason Grover said...

I tend to view our positions as closer to op-ed pieces. If we didn't comment on what we thought was good and bad about the system, it would be a boring blog. And I cannot imagine that the average citizen would believe that Chief Judge Wagner, or any other CCA or CAAF judge, is going to rule in my favor because I said something here. I would agree it would be improper to attempt to convince a judge here on the merits of a specific case under review - but I think the blog has generally commented on trends and suggestions for improvement of the whole system. Nothing different than the Cox Commission for instance. Is there any specific case anonimo (as my Italian version says) that you believe a contributor crossed the line or even got close to it under 3.5?

No Man said...

If ananymous could share with us his thought process on his ex parte question, I would be very interested. Specifically, Model Rule 3.5 does not prohibit all ex part communication. It reads, "A lawyer shall not . . . Communicate ex parte with [a judge, juror or other official] EXCEPT AS PERMITTED BY LAW." How does that last phrase modify the duty when dealing in publicly available communications?

CAAFlog shares commentary on cases that have been decided or brings to people's attention noteworthy cases that are under review in appellate courts or military courts-martial. It has not discussed the non-public facts of on-going proceedings or engaged in attacks on a party's case under review. In fact, we specifically removed posts that bordered on the latter, even though the commentary came from a non-party to the proceedings and focused on the legal arguments of a particular advocate vs. a personal attack. I think that if a judge or a litigant released the details of a case or made statements about their adversary during an on-going case, the issue would be far more sensitive. See e.g. a prosecutor lambasted by a judge for making blog comments about the case (

bill said...

While I do not agree with Anonymous' conclusion, I must confess to feeling a little uneasy knowing that some of the CCA Judges read this blog. If nothing else, I would hate to see them have it in the back of their mind that someone who appears before them has said something negative about them.

Nathan Jessup said...

That is why the high road of discussing the law us always the best road. And heck, what a novel concept, discussing the law on a blog devoted to . . . the law.

Guert Gansevoort said...

"The goal of this blog is to facilitate serious and informed discussion of military justice appellate practice." I think that this blog has done just that. No counsel who currently acts as counsel of record in any active military case has ever commented on a case pending decision before a court of criminal appeals or the C.A.A.F. in which that attorney was counsel, much less done so in an attempt to sway the votes of judges who may be out there in the ether. I suggest that the "vote for me" letters that I send to the each of the federal judges that I practice before may in fact have more impact upon deliberations than this blog, which fills an important void in an area of the law that affects over a million Americans, and is run entirely by inexperienced lawyers. Judge Posner, if you are reading this, please vote for me. Government and opposing civlian counsel, you have been served with notice of my communications.

Scott Stoebner said...

First time poster, long-time reader. Please refrain from hazing!

First, and briefly, regarding Anonymous’ post about whether posting on CAAFlog might possibly violate any prohibition on ex parte communications, my admittedly torpid mind fails to see how this could be an issue when discussing a public (probably a small public at that—mostly just us uber-dorks who have outgrown Dungeons & Dragons) blog that makes no pretensions of being anything more than a discussion forum; an on-line water cooler. If judges are concerned that they might be influenced by the posted topics, the obvious solution is for the judge to stop reading the blog. But does that address the suggested “bait and switch” tactics? As stated above, I’m a reader of the blog, but crack it ain’t (with much due respect, of course). I just think I could get my miljus fix in other ways if I was personally concerned about the possibility of being impermissibly swayed by something on the blog. (For example. I could take up reading with more regularity more juicy legal tabloid sites such as (today’s hot lede: a sitting Federal judge is to appear on the Food Network!) (Related topic: ask me about my girlfriend’s idea for a crock-pot cookbook called “Res Ipsa Slowcooker: the thing cooks for itself”). I do share Bill’s concern about judges reading the posts. Possible solution: an even more informal discussion froum. “CAAFloglog” anybody? Or is this getting silly?

But the reason for momentarily exiting my happy ether of silence and actually posting is that the discussion does, in my mind, bring up an interesting idea (that I throw out there not as any sort of suggestion that I would like any court to act upon, but for general discussion of a whim) of having “blog arguments” instead of “oral arguments”. That is, a more detailed, more-contemplative back-and-forth between the parties to a case moderated by the panel of an appellate court. Might make more sense than an oral argument and might be more fruitful to all parties. The case blog could be open for a few days or a week and parties could have a detailed discussion of the finer points of the case. I don’t necessarily think this would take up more of the court’s time, either (Prep for oral argument vs. actual blog time: about the same???). Of course, throwing student amicus briefs into the fray might complicate matters. And Project Outreach could be extended to various chat rooms.