Monday, 3 September 2007

At 11th Circuit, What Happens at Oral Argument Stays at Oral Argument

September 3, 2007

At 11th Circuit, What Happens at Oral Argument Stays at Oral Argument

Howard J. Bashman,

The number of federal appellate courts that provide access to audio files of
recent oral arguments over their Web sites now stands at four -- the 7th,
8th, 9th and Federal Circuits -- and I expect that number will continue to
grow, given the usefulness of the feature and the ease with which audio
files can be stored and made available for download over the Internet.

Yet, if a single federal appellate court could be considered the least
likely to provide easy online access to its oral argument recordings based
on its current policy, that court would be the Atlanta-based 11th U.S.
Circuit Court of Appeals.

Currently, 11th Circuit Local Rule 34-4(g) provides: "Recording Oral
Arguments. Oral argument is recorded for exclusive use of the court. Neither
the recording nor a transcript thereof will be made available to counsel or
the parties. With advance approval of the court, however, counsel may
arrange and pay for a qualified court reporter to be present to record and
transcribe the oral argument for counsel's personal use. Recording of court
proceedings by anyone other than the court is prohibited."

This means that, if someone wants to know what's happened at an appellate
oral argument in the 11th Circuit, there's only one way to know for sure:
Attend in person and take excellent notes, or rely on notes made by other
people who attended and hope that what they report actually happened.

As it happens, the 11th Circuit is considering an amendment to Local Rule
34-4(g), but it would provide only the slightest relaxation of the court's
current policy, and that is only as regards the highest court in the land.
The proposed amendment provides, in pertinent part, "Recording Oral
Arguments. Oral argument is recorded for the use of the court, but a copy of
the recording will be made available to the Supreme Court if requested by
that court. Otherwise, the recording will not be made available to any
entity or person outside the court unless the panel members and the Chief
Judge all agree that compelling reasons exist for doing so."

The proposed amendment also contains the original rule's provision allowing
the parties to arrange for a court reporter to be present to transcribe the
oral argument with the panel's permission and for good cause shown.

The proposed amendment may be cold comfort to other judges, as in the case
of U.S. District Judge Gregory A. Presnell of the Middle District of
Florida. In a footnote to a published opinion earlier this year, Presnell,
apparently irked by the 11th Circuit's reversal of a below-guidelines
sentence that he imposed on a defendant for a crack cocaine-related criminal
conviction, criticized the 11th Circuit's policy of denying access to oral
argument audiotapes.

Presnell wrote: "It is difficult to understand how or why the Court of
Appeals concluded that the sentencing rationale I set out was mere
subterfuge. I thought perhaps something was said during oral argument on
appeal that influenced the panel's judgment. So I requested a copy of the
transcript from the Court of Appeals. My request was denied. Unlike the
United States Supreme Court and most of the other courts of appeal, the
United States Court of Appeals for the Eleventh Circuit maintains the
transcripts of these public hearings in secret."

It is difficult to understand why the 11th Circuit guards the record of what
has transpired at its oral arguments with such vigilance. After all, those
oral arguments are open to the public in the first instance. When the news
media, interested members of the general public and even federal district
judges cannot obtain access to the only official recording of what has
transpired during a federal appellate court's open session, there is great
reason for concern.

I do not contend that the 11th Circuit must, against its will, provide
online access to its oral argument audiotapes. But, at a minimum, those
recordings should be made available for the general public to access at the
court's headquarters, so that both the press and the public can have the
ability to hear -- even when they are unable to demonstrate compelling
reasons for doing so -- what has occurred at an 11th Circuit oral argument
without having to attend the oral argument in person.


Source : (Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached
via e-mail at You can access his appellate Web log at )

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