Sunday, June 28, 2009

Some thoughts about the CCAs' oral argument practice

It turns out that the data set isn't sufficiently rich to do meaningful inter-CCA analysis of oral argument practice. Disturbingly, one of the best sources of information about the CCAs' oral argument practice is our TWIMJ. But we've only been running that feature in a systematic way since 23 November 2008. Once we've been tracking the CCAs' oral argument practice through TWIMJ for a longer time, we may be able to make some meaningful statistical observations. Future analysis will also be aided by ACCA's move in late February 2009 to include summary dispositions on its web site. Analysis would be further aided if NMCCA would indicate on its opinions when the case was orally argued -- as ACCA seems to do and as AFCCA usually, but not invariably, does. And we'd be nearing military justice wonk heaven if NMCCA would follow the practice of every other CCA and every Article III court and make all of its opinions available online.

In the meantime, the scant available data suggest some questions even if they don't reveal answers. Are there differences in the way CCAs respond to oral argument requests from retained counsel versus oral argument requests from military or civil service counsel? We've noted that AFCCA decided two cases without ruling on oral argument requests this year -- one from military appellate defense counsel and one from a DOD-employed civilian counsel (me). On the other hand, three of the seven oral arguments AFCCA has heard this term are in cases where the request came from retained civilian counsel.

Perhaps it's also useful to ask what percentage of argued cases result in published opinions and what percentage of published cases were orally argued. Interestingly, in three of the four cases in which NMCCA has heard oral argument this term and has issued an opinion, the opinion was published. For AFCCA, that statistic is two out of six. With the limitations on the existing data set, it isn't apparent what the figure is going the other way -- i.e., how many of the 22 published CCA opinions issued thus far in calendar year 2009 arose from cases that were orally argued. (I know that seven were, but it's possible that the number is higher and perhaps even much higher.)

It also appears that a large percentage of cases in which the United States is seeking relief (i.e., Article 62 appeals and petitions for extraordinary relief in which the government is the petitioner) are orally argued. However, in one Article 62 appeal decided by the Air Force Court this year, the court denied a motion for oral argument before ultimately ruling for the government. (That means that AFCCA has denied at least three requests for oral argument this year while hearing a total of seven oral arguments.)

What is probably the most interesting statistic isn't available from the available data and won't be available even as that data set fills out over time: in what percentage of cases do the various CCAs deny requests for oral argument and are there any statistically significant factors that correlate with such denied requests?

Looking for apparent correlations between oral argument and outcome will have to await the development of a much larger data set.

In the meantime, can anyone provide us with anecdotal evidence of why ACCA will hear almost three times as many oral arguments during the first half of this year compared to NMCCA, even though those two courts' dockets are roughly the same size? Here's an interesting statistic -- NMCCA has heard oral argument in 2009 in just three Article 66 appeals. (The other two cases in which it's heard oral argument were Article 62 appeals.) Has it denied requests for oral argument in Article 66 appeals? Or are counsel almost never asking? Another interesting stat in thinking about the difference between ACCA's practice and NMCCA's practice: even though the number of cases that the two courts received for docketing last fiscal year are comparable (ACCA = 867; NMCCA = 852), the percentage of the appellate docket devoted to SPECIAL courts-martial is almost twice as great for NMCCA (76%) as for ACCA (39%). (For AFCCA, the incoming cases were split almost down the middle -- 159 GCMs and 156 SPCMs.) Does the higher percentage of GCMs on ACCA's docket help to explain the difference? Perhaps. Interestingly, of the five cases orally argued at NMCCA this year, all were GCMs. Of the seven cases orally argued at AFCCA this year, five were GCMs. Obviously it would also be useful to know the breakdown of contested cases versus guilty pleas on the Big Three CCAs' dockets.

So lots of questions, no answers.


John O'Connor said...

Your first sentence is right -- not enough data to learn anything.

Actually, the most interesting factoid in your post is one that has nothing to do with oral argument -- that the ACCA and NMCCA have about the same caseload, but that ACCA has almost twice as many GCMs and the NMCCA (which my pea-brain tells me also means that NMCCA has nearly twice as many SpCMs as ACCA).

Acknowledging I know next to nothing about Army court-martiual practice, I would guess the driver here is that the Navy and (especially) Marine Corps probably are much more likely to deal with UAs and one-spec drug pops at a SpCM than the Army.

That also would explan why the total dockets are nearly equal when (I assume) the Army has a lot more personnel than the Navy and Marine Corps combined.

Anonymous said...

Come to think of it, the AFCCA also denied another request this year for oral argument in an extraordinary Writ case - US v. Webb.

Anonymous said...

Tiny anecdotal bit about the Army Court....Though they are very pro-argument when requested, if the brief has 3-5 assignments of error, they will often grant argument on only the best 2 issues...which is a good compromise between denying an argument request and having a 3 hour argument with 5 issues.

Anonymous said...

Perhaps ACCA's numbers are inflated because it's granting (liberally, it appears) on legal and factual sufficiency AOE's. Assuming effective briefing, it's not clear how oral argument would add ANY value to a LS/FS claim. Oral argument should represent more than a training evolution or FitRep bullet (for the litigants OR the judges). I'd be reluctant to applaud ACCA based on raw numbers; it's just as likely they show an unwillingness to discriminate.

Anonymous said...

United States v. Czachorowski, 66 MJ 432 (C.A.A.F. 2008); No. 07-0379/NA (Feb. 29, 2008) is emblematic of NMCCA's attitude toward oral argument.

As reported on this site (Tue Mar 04, 08:38:00 PM EST):

"The CDC made several motions for an oral argument before NMCCA on these issues, which NMCCA never extended the courtesy of even addressing. NMCCA just ignored the requests for oral argument."

Result? ...CAAF reversed.

Dew_Process said...

Some years ago - the case was reported in 25 MJ - I had an AF case where the issue was a post-trial breach of the PTA. AFCCA twice denied our Motion for Oral Argument. We raised that as an issue at the CAAF. They didn't address it, but granted sentence relief to vitiate the government's breach.

If there are any CCA Judges or former judges hanging around, your input would be greatly appreciated. It's one thing for counsel to "submit" a case on the pleadings, quite another where there are significant, substantive issues and counsel requests oral argument, to just blow them off.

Anonymous said...

The court has its discretion. So my input addresses two very narrow points that deal with matters of professionalism. First, the court should at least formally DENY the request for oral argument. This is a ministerial act bearing a light burden. Among other things, including to avoid an appearance of sloth, indifference or neglect, this permits the attorney to communicate the case status with a client and reduce the "particularized anxiety" in those case with real issues. Second, the court should, in the decision, memorialize the oral argument requests, even if in a footnote.

But the next time a detailer or other JAG senior promotes one of the appellate divisions as a place to hone oral argument skills, lets have them charged under the UCMJ with the ubiquitous "false official statement."

Anonymous said...

"Assuming effective briefing, it's not clear how oral argument would add ANY value to a LS/FS claim."

Having sat through a few moots on these issues, I'm not sure that's true. I don't believe oral argument is particularly effective in most situations regardless of the issue or the quality of attorney, but if there is one area where it can have an impact, it would seem to be at least factual sufficiency, which often cannot be explained as well on paper as orally, much like at trial, where the closing argument helps ties things together.

Not that FS isn't usually the worst of the assignment's of error you can have, it is, but an effective oral argument can make it at least plausible.

Anonymous said...

Bryan Garner interviewed SCOTUS and has published those interviews. It ought to be mandatory reading/viewing for all attorneys, especially appellate counsel. BLUF, the justices pretty much universally opine that oral argument is way overrated and unnecessary in most case.

My personal opinion is that oral argument is most often granted civilian counsel in recognition of the fact that it is a significant revenue source in private practice. If the client is willing to pay, it's a way to help the MJ bar that is largely retired military. More often than not, military appellate counsel chose what they think is an interesting case to request oral argument simply to get the experience and burnish their resume.

The time and resources committed to oral argument prep would be much better spent writing more and better written briefs.

Jeff Stephens said...

The only time NMCCA's practice of not hearing oral argument really ticked me off was when I had a motion for oral argument granted in one of my cases while I was TAD to Iraq. When I came back, I asked the court to schedule said oral argument and they vacated their earlier grant and refused oral argument! Talk about being fickle.

Bridget said...

Only anecdotal, but my sense is that the Army deals with a lot of relatively minor misconduct through 15's and even summary courts, an institution not often seen in the sea services. But as you point out J O'C that really only speaks to trials not oral argument at the CCAs.

Dwight Sullivan said...

The size of the Navy and Marine Corps combined is roughly the same as that of the Army. Look at section 401 of the Duncan Hunter National Defense Authorization Act for FY 2009, 122 Stat. 4356, Pub. L. No. 110-417. That section provides the authorized end strength for each branch of the armed forces. The Army's end strength is 532,400. The Navy's is 326,323 while the Marine Corps' is 194,000, for a combined 520,323. (The Air Force's authorized end strength is 317,050 -- about 3/5 that of the Army and that of the Navy and Marine Corps combined.)

John O'Connor said...

Then soldiers are nearly twice as likely to end up at a GCM as their sea service brethren.

At the same time, it seems likely true that drug pops and UAs of 30 days or more are considerably more likely to get resolved short of a SpCM for soldiers as compared to sailors and Marines.

What's all that mean? Heck if I know.

Anonymous said...

I guess it means that the Commander's discretion is alive and well.

Cossio said...

I'm glad someone is finally addressing the disparity of these numbers. I've been saying this for years when I first looked at the Annual Reports.

I remember that in 2004 (my first CM) the Air Force had more GCMs than the Navy and Marine Corps combined, and rivaled the Army.

Did the Air Force have more Rapist and Murderers than the Navy-Marines?

Seriously doubt it. So the disparity of Court Martials, which leads to the disparity of Appeals, Oral Arguments, etc. can be attributed to the different Nuances, Procedures of the Services.

The fact is, the Uniform Code of Military Justice Isn't so uniformed at all.