Following up on our recent analysis showing that the Sixth Circuit usually takes slightly longer to reverse than affirm, this post examines whether cases with no oral arguments are more likely to be affirmed. We expected that decisions made without oral argument would be affirmed more often because courts presumably grant oral arguments when judges have substantive questions after reading the briefs that might control the disposition of the case (particularly in the Sixth Circuit, which has recently been restricting oral arguments over the past few years). It is long accepted that oral arguments provide attorneys the opportunity to answer judges’ concerns, clarify their arguments, and provide reasons for the panel to decide in their favor.
We reviewed 203 cases from the first quarter of this year and found that no less than 23% of the civil cases without oral argument were reversed, which was significantly higher than roughly 13% of civil cases that were reversed during 2014. The difference was much smaller on the criminal side, where 6.5% of criminal cases without oral argument were reversed which was only slightly higher than the general average of 5.8% for 2014. Surprisingly, these numbers suggest that an appeal is more likely to be reversed where the court does not grant oral argument. Perhaps there are more cases where a reversible error is clearly apparent on the record than cases where oral argument is helpful to resolve tricky cases of law or fact. Admittedly, the sample size is relatively small, and this could be an aberrational quarter, but this is a statistic that will require further analysis. And, again, it highlights the critical importance that the brief plays in the overall effectiveness of appellate advocacy.
Either way, this data shows that civil clients on the appellant side should not necessarily take a grant of oral argument as a sign of an impending reversal. If the easy reversals have already been taken care of before oral argument, as suggested by this data, it may be a sign obtaining a reversal will be doubly difficult. We will follow up on this issue with the benefit of additional data in future posts.