A paltry 10.4%.

The Administrative Office’s published oral argument rate for the Third Circuit for fiscal year 2015 will undoubted evoke commentary – much has been made of the Third Circuit’s relatively low rate for several years now. This is a bit of surprise: the Third Circuit has had relatively low oral argument rates for nearly 20 years. In fact, in 1997, it had the lowest rate of the 12 federal courts of appeal for which the Administrative Office publishes statistics – 29.6%. For many of the subsequent 19 years, only the Fourth Circuit’s, Eleventh Circuit’s or Fifth Circuit’s rates were lower than those of the Third Circuit. Bottom line: the Third Circuit’s FY 2015 oral argument rate is at the low end of the spectrum, but that is where the Third Circuit has historically been.

The Third Circuit’s rates have also been declining over time. But oral argument rates having been declining over time across all circuit courts. In FY 1997, for example, the highest oral argument rate was 64.9%. In FY 2012, the highest reported rate was 38.3%. Although it was back up to 56.4% for FY 2015, the last time any circuit court had a reported rate of over 60% was in FY 2003.

What’s going on? Are circuit courts simply more likely to decline to hear argument, or does something else explain the declines in reported rates over time?

Turns out the Administrative Office’s published oral argument rates have declined over time for several different reasons, some of which have nothing to do with what’s going on in the circuit courts.

First Reason:
The Administrative Office has changed how the denominator is defined.

For FY 1997, oral argument rates were computed as:

 The number of cases for which oral argument was heard    x 100
    The total number of cases terminated on the merits

Compare Table B-1 to Table S-1 (under the new numbering system, Table S-1 is now Table B-10) in the set of tables associated with the Administrative Office’s Judicial Business report for FY 1997. The total number of cases terminated on the merits did not include cases disposed of by consolidation or procedural terminations. See Table B-1. Thus, the reported percent in Table S-1 was the percent of all cases terminated on merits for which oral argument was heard. Simple enough.

But in 1998, the Administrative Office added significantly to the types of cases included in its “original proceedings” category. (Check the footnotes at the end of Table B-1 for FY 1998). It again changed the types of cases included in the “original proceedings” category in 2014 (to include “miscellaneous applications”).

These changes increased the size of the “total number of cases terminated on the merits” — i.e., the denominator in the formula used to calculate oral argument rates. Original proceedings are generally not cases that require oral argument, and so changes to the cases included in the original proceedings category substantially increased the denominator without causing a commensurate increase in the numerator. As a result, the reported percentages dropped.

The same effect, but for a different reason, occurred in FY 2012. Before FY 2012, terminations via a denial of a certificate of appealability were counted as procedural terminations. See, for example, Table B-5A for FY 2011. But since FY 2012, the Administrative Office has counted cases terminated through denial of a certificate of appealability as cases terminated on the merits. See Table B-5 for FY 2012. For the Third Circuit, this change added 334 cases to the denominator in FY 2012, again without causing a commensurate change in the numerator. Oral argument rates could be expected to decline for all circuit courts that regularly see a sizeable number of requests for a COA. (This may partly explain why, after FY 2012, the D.C. Circuit has consistently had the highest oral argument rate).

Second Reason:
The Administrative Office’s published rate is simply wrong.

This is does not explain much, but does show up in one year’s published rates in Table S-1: those for FY 2012. In that year, for whatever reason, the Administrative Office “forgot” to remove consolidated cases from the figure used as the denominator. As a result, for courts that had a sizeable number of consolidated cases in that year, the denominator was too high, making the published rate artificially low.

The effects of the Administrative Office’s errors and changes.

Removing all original proceedings cases (both those argued and not argued), all certificate of appealability cases after FY 2011, and all consolidated cases for FY 2012 allows figures for all years between FY 1997 and FY 2015 to be directly compared. The graph below shows the effect of these changes on rates for the Third Circuit:

As expected, the corrected rates are in all instances greater than the uncorrected rates (the blue line is above the red line throughout the period). Notably, the corrected rate for FY 2015 is 16.14% – still comparatively low, but not 10.4%.

The blue line still shows a general decline over time, suggesting that other forces are also work to reduce the oral argument rate. Possible reasons will be the focus of a future post.