Revisiting Cancelled Oral Arguments

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Morrison & Foerster LLP - Federal Circuitry

It has been a little while since we took a look at what—from a statistics standpoint—went down at recent oral arguments (see last post here). Since the Federal Circuit went remote, there was an initial wave of a high percentage of appeals that would have gotten oral argument pre-pandemic that were decided on the briefs instead—with several sessions having a 40% or more cancellation rate for cases originally scheduled for argument. As we’ve now eclipsed the one year mark since telephonic arguments began, we thought we should look at how the most recent calendars have looked as far as cancelled arguments since the January session (which had 45% of arguments cancelled).

As the chart above shows, the past four months have been relatively stable—with fewer arguments cancelled than earlier in the pandemic. And over the past three months in particular, that cancellation rate between district court and PTAB appeals has remained about even. Earlier argument sessions dating back to last year were more like the February cancellation rates, with appeals originating from the PTAB being cancelled nearly twice as often. What does this mean? Setting our usual caveats about sample size aside, it suggests that, as we’re a year into telephonic oral arguments, the Court has a pretty good idea of what arguments should be cancelled. And while we expect some fluctuations, our money is on fewer arguments being cancelled going forward compared to what happened when the Court first went remote.

Finally, we took a recent look at Rule 36 dispositions in appeals with cancelled arguments. As usual, there were not many—only one or two per session: 1 in February, 2 in March, and 1 so far in April. The judges on the panels of those cases were pretty evenly distributed too: Judge Reyna on three, Judges Taranto and Stoll each on two, and Chief Judge Prost and Judges Mayer, Lourie, Clevenger, O’Malley, Chen and Hughes each on one.

Here are some stats on the past few argument sessions:

February stats

Total cases: 33 arguments (and 32 cases submitted on the briefs, of which 14 were originally set for argument)

Oldest case: Apple Inc. v. Uniloc 2017 LLC, No. 19-1151 (831 days)

Quickest case: Quantico Tactical, Inc. v. US, No. 21-1031 (117 days)

PTAB cases: 14 arguments (and 8 counseled cases submitted on the briefs)

District court cases: 10 arguments (and 2 counseled cases submitted on the briefs)

Rule 36 affirmances: 14

Number of argument days by judge: 

  • Prost: 4
  • Newman: 2
  • Mayer: 3
  • Plager: 1
  • Lourie: 4
  • Clevenger: 2
  • Schall: 1
  • Bryson: 1
  • Linn: 0
  • Dyk: 4
  • Moore: 4
  • O’Malley: 4
  • Reyna: 3
  • Wallach: 1
  • Taranto: 3
  • Chen: 4
  • Hughes: 2
  • Stoll: 3

March stats

Total cases: 42 arguments (and 21 cases submitted on the briefs, of which 14 were originally set for argument)

Oldest case: Mass Engineered Design, Inc. v. Planar Systems, Inc., No. 19-1365 (810 days)

Quickest case: Lalliss v. DVA, No. 20-2241 (182 days)

PTAB cases: 18 arguments (and 7 counseled cases submitted on the briefs)

District court cases: 13 arguments (and 4 counseled cases submitted on the briefs)

Rule 36 affirmances: 13

Number of argument days by judge:

  • Prost: 3
  • Newman: 2
  • Mayer: 2
  • Plager:
  • Lourie: 3
  • Clevenger: 1
  • Schall: 1
  • Bryson:1
  • Linn: 2
  • Dyk: 3
  • Moore: 4
  • O’Malley: 3
  • Reyna: 4
  • Wallach: 3
  • Taranto: 5
  • Chen: 4
  • Hughes: 3
  • Stoll: 3

April stats (so far)

Total cases: 39 arguments (and 20 cases submitted on the briefs, of which 15 were originally set for argument)

PTAB cases: 10 arguments (and 4 counseled cases submitted on the briefs)

District court cases: 10 arguments (and 4 counseled cases submitted on the briefs)

Number of argument days by judge:

  • Prost: 4
  • Newman: 2
  • Mayer: 2
  • Plager: 1
  • Lourie: 4
  • Clevenger: 2
  • Schall:
  • Bryson: 1
  • Linn: 0
  • Dyk: 4
  • Moore: 4
  • O’Malley: 4
  • Reyna: 5
  • Wallach: 1
  • Taranto: 4
  • Chen: 3
  • Hughes: 4
  • Stoll: 3

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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