American appellate practice: Do you guys have "Not called on."?

[Northern Piper]

So I had an appellate appearence awhile ago where I wasn't called on by the Court. They heard the barrister for the other side, then the presiding judge said, "We won't need to call on you, Mr. Piper" and they gave oral judgment for my client.

It means that the Court was satisfied by the written materials filed, and didn't need any oral submssiions from me. It's a good feeling, and one that lets the client know they got their money's worth.

Does that happen in the appellate courts in the U.S. - either state or federal?

[Cunctator]

Originally Posted by Northern Piper

So I had an appellate appearence awhile ago where I wasn't called on by the Court. They heard the barrister for the other side, then the presiding judge said, "We won't need to call on you, Mr. Piper" and they gave oral judgment for my client.

I bet that made you feel good and your opponent feel awful.

I know of a similarish situation here. One of the barristers who was involved was a "guest lecturer" in my Advanced Torts course last semester at uni and he described it all to us. He had been appearing for the plaintiff in a wrongful life action. The plaintiff lost at first instance in the NSW Supreme Court. Her subsequent appeal to the NSW Court of Appeal was also dismissed. The barrister sought leave to appeal to the High Court of Australia (HCA). He described how he had prepared his submission for the leave hearing, and was waiting eagerly to give his oral arguments as to why his client's case was of such legal significance that the HCA should grant leave for an appeal. At the leave hearing the presiding Justice didn't call on him but instead turned to the other barrister, saying in effect "can you mount a case why leave to appeal shouldn't be granted".

The HCA granted leave to appeal but the barrister's client lost by a 6-1 majority*. He was an interesting lecturer nevertheless.

*Harriton v Stephens 2006 HCA 15

[pravnik]

In my state, if the court calls for oral argument, both sides are entitled to argue, but the court doesn't have to call for any oral argument at all if it doesn't think it would be helpful and can instead decide the case solely on the briefs. On the federal level I'm not positive that you're really entitled per se to argue if argument is called for, but I've never heard of a panel just disallowing argument by one side altogether. I think the general view is that if you've bothered to tell the person to show up, you ought to let them argue even if all you're going to do is rag them around the whole time. It's interesting that your judge ruled from the bench; is that the common practice? Here the judges just thank you and dismiss you, and you find out if you won or lost when the written opinion is handed down a few months later.

[Bricker]

TV perceptions aside, defense wins at the intermediate court of appeals - at least in Virginia - are pretty damn rare.

The basic scenario above happened once to me, where the Commonwealth conceded error in the first two minutes of oral argument and spent the remainder of their time backpedalling and trying to distinguish. After his time expired, the judges held a brief whispered conference and then the lead judge said something like, "We will depart from our usual practice and issue a ruling now in the interests of justice, unless Mr. Bricker objects."

I was well-prepped to argue, but only a moron couldn't have seen the way the wind was blowing. You don't split tens, and you don't insist on arguing after a line like that.

[Random]

Yes, that line means "Shut up, we're going to rule in your favor." So you waive any right you have to argue and sit down.

[Northern Piper]

Originally Posted by pravnik

In my state, if the court calls for oral argument, both sides are entitled to argue, but the court doesn't have to call for any oral argument at all if it doesn't think it would be helpful and can instead decide the case solely on the briefs.

That's different here - the court has to give the parties an oral hearing, even if the judges are leaning strongly in one direction having read all the written materials.

I've never heard of a panel just disallowing argument by one side altogether. I think the general view is that if you've bothered to tell the person to show up, you ought to let them argue even if all you're going to do is rag them around the whole time.

Oh, they'll hear from you if they're going to rag on you - it's only if they've pretty much been convinced by your written factum that they don't call on you.

It's interesting that your judge ruled from the bench; is that the common practice? Here the judges just thank you and dismiss you, and you find out if you won or lost when the written opinion is handed down a few months later.

In our provincial Court of Appeal, it's quite common for the Court to rule from the bench, with short oral reasons which are later released as a short written judgment.

In the Supreme Court of Canada, it's not common, but it's not unheard of for the Court to decide from the bench - sometimes with short oral reasons, sometimes with reasons to follow. One of the most common reasons for decision from the bench in the SCC is on criminal appeals as of right. In certain situations, an accused may have a right to appeal to the SCC, rather than requiring leave to appeal, but often such cases don't raise a major issue of law, so if the Court is satisfied that there was no error, they're content to rule from the bench, often adopting the reasons of one of the judges in the court below.

But they sometimes rule from the bench in major issues. For example, in R. v. Beare and Higgins, the issue was whether the federal law allowing the police to take finger-prints when arresting an individual was constitutional. The lower court had ruled that it was not. The Court heard argument in December, 1987, and allowed the Crown appeal from the bench, reasons to follow. They only got their reasons out a year later, in December, 1988. They explained the reason for this approach:

Originally Posted by La Forest J.

19. Following the hearing of the appeals on December 17, 1987, the Court immediately allowed the appeal and held that the impugned provisions did not contravene the Charter. Since the accused had refused and, therefore, not been subjected to fingerprinting, the issue of their retention did not arise and the Court did not pronounce on this question. The Court announced it would give reasons later when it would also dispose of the matter of costs, which counsel for the respondent Beare sought in any event. That judgment reads as follows:

Since a decision as to the constitutional validity of the impugned provisions of the Identification of Criminals Act and the Criminal Code is a matter of urgency in the administration of justice, the Court disposes of these appeals forthwith, its reasons to follow at a later date.

The Court finds the provisions constitutional and allows the appeals. The issue of retention of fingerprints after acquittal does not arise on the facts of these appeals. The question of costs is reserved.

The SCC also sometimes advises counsel for the respondent that they need not respond to certain issues raised by the appellant's counsel. That means that they've not been convinced by the appellant's arguments on those points, but are still not decided on some of the other issues.