Oral argument does make a difference!

Many appellate courts do not bother with oral argument these days, preferring to take the case on submission. But the Second Circuit still hears argument in most cases, and one listen to the oral argument audio confirms that these proceedings are quite lively. But does oral argument really make a difference? By the time the lawyers step to the podium, the court has already reviewed the briefs and the record, and it probably has a sense of where it wants to go in the case. But sometimes the lawyers say something at argument that makes a difference.

The case is Allen v. City of New York, a summary order decided on June 13. Plaintiff alleges he was denied a promotion and suffered retaliation because of his race and national origin. The district court dismissed the case on summary judgment, reasoning that plaintiff was not qualified for his position and there was no evidence of discriminatory intent.

Plaintiff wanted the Supervisor Watershed Maintenance I position. Whatever the district court had concluded to the contrary, the Chief of Eastern Operations for the Department of Environmental Protection said he was in fact qualified for the position. Plaintiff's affidavit on the summary judgment motion refuted management's claim that plaintiff had withdrawn his application for the position. So we have a fact issue for trial on the retaliation claim.

Here is where the oral argument admissions kick in. A coworker testified at deposition that the Acting Chief of Operations told this coworker that plaintiff had been discriminated against. While the district court said this testimony was hearsay, at oral argument on appeal, defendant's lawyer conceded that the Chief's statement to the coworker was not hearsay but was instead an admission. That is because a high-ranking supervisor made the statement. Moreover, the Court of Appeals (Raggi, Lohier Droney) says, "a reasonable jury could find that such a statement from one DEP supervisor to another was not speculation but a communication about an important employment matters within the scope of his agency." The Court cites Walsh v. NYC Housing Auth., 828 F.3d 70 (2d Cir. 2016), for this proposition. Oral argument also got another admission from the City's lawyer: that no admissible evidence shows that the person chosen for the position over plaintiff was more qualified than plaintiff.

I rarely see this in Second Circuit opinions. Most decisions make no reference to oral argument at all. Maybe this is one reason the Court still hears argument. A few years ago, the Court announced that it would decide sua sponte that certain cases would be taken on submission even if the parties wanted argument. But in practice, most cases get argued, including pro se cases where the plaintiff does not know the law and makes an emotional plea to the judge who listen silently.

Are there other reasons why the Second Circuit likes oral argument? Maybe it's the beautiful courtroom at the United States courthouse. The 17th floor courtroom was recently refurbished and looks like an appellate courtroom right out of central casting. On some days, the Court assigns two different 3-judge panels to hear cases. The second panel sits in the 19th floor courtroom, which is an almost exact replicate of the 17th floor courtroom, except that the wood is a little darker. Maybe the Court wants us to experience these beautiful rooms. What's the point of having a beautiful courtroom if no one sees it?

Another reason for oral arguments in most cases is that the Court may want continued human interaction. Appellate judges spend most of their time reading briefs, pouring through the record on appeal, writing decisions and sharing them with their colleagues on the bench. All of this work is done in private chambers. Judges are not allowed to engage in political activity and probably watch what they do in the outside world, always endeavoring to maintain the appearance of neutrality. While district court judges interact with lawyers on a regular basis -- at pretrial conferences and at trial -- appellate judges only get to interact with lawyers at oral argument.