Jenner & Block

“Wild Cards: Oral Argument Before a Visiting District Court Judge,” ABA Appellate Practice

In this article, Jenner & Block Associate Lauren J. Hartz provides advice to lawyers about accounting for perspectives of district court judges on circuit panels.  Most federal circuit courts provide notice of the judicial panel prior to the day of argument, which allows time to research the visiting judge’s prior opinions about the issues on appeal and learn about the judge’s questioning style.  Lawyers should also appraise the key appellate arguments through the lens of a trial court judge, taking into account the distinct institutional roles.  For example, the trial court judge may be more deferential to fact-finding below or may be more inclined to remand in lieu of reversing.  In addition, lawyers should consider the intrapanel dynamics, as repeat-player incentives are different for visitors than for circuit colleagues.  These approaches will help the advocate “persuade not only the circuit judges whom they expected to see on the bench but also the unanticipated visitor from federal district court.”