from the Appellate Advocacy and Post-Trial Practice Group

Will COVID-19 Kill Oral Arguments in Florida State and Federal Appellate Courts?

          Appellate advocates always look forward to oral argument. It is a chance to speak with the court about your case and an opportunity to persuade the panel to rule in your client’s favor. In Florida State and Federal courts, oral arguments are not routinely granted. Now, “in-person” oral argument may become extinct because of the pandemic that is plaguing the state of Florida, the United States, and the entire world.

          Due to COVID-19, all Florida state appellate courts have postponed or canceled oral arguments through April. However, each court has adopted its own protocol for how affected oral arguments will be handled.

The Florida Supreme Court typically holds oral arguments once a month (during most months of the year).  Because of COVID-19, the Florida Supreme Court has postponed April oral arguments until June.

Like the Florida Supreme Court, the First, Third and Fifth District Courts of Appeal have also postponed or canceled all oral arguments scheduled through the end of April. However, those courts have not rescheduled the oral arguments to June.  Instead, the panel assigned to hear each case will determine whether to reschedule oral argument or decide the case without oral argument.

If you have an oral argument scheduled in the Second District Court of Appeal in March or April, the fate of your case will not automatically go to the panel without oral argument. Instead, based on the parties’ preferences, oral argument in the affected cases may be rescheduled at a later date or considered without oral argument.

The Fourth District Court of Appeal has not formally announced how it will be handling its affected oral arguments.  However, the Fourth District canceled oral arguments scheduled for March 30 and April 7, and proceeded with telephonic oral arguments for the March 24 calendar. The court streamed the telephonic oral arguments for the public and made them available on the court’s website as it typically does with in-person oral arguments.

It is curious whether the other Florida appellate courts will follow suit with scheduling telephonic oral arguments while the social distancing orders remain in place.

As for the federal appellate court in Florida, the Eleventh Circuit Court of Appeals typically holds in-person oral arguments in Miami and Jacksonville. However, due to the COVID-19 pandemic, on March 20, 2020, Chief Judge Carnes entered General Order 45, authorizing panels to hear any or all oral arguments by audio or teleconferencing instead of in person.  Where feasible, the court will live stream to the public at no cost to anyone who wishes to listen to the oral argument.  The order does not apply to oral argument in national security or other cases that would not otherwise be heard publicly. This order will stay in effect until Chief Judge Carnes or another judge rescinds it.

As we all try to adapt to the evolving legal landscape that COVID-19 has thrust upon us, it will be interesting to see if Florida’s appellate courts determine that justice can still be served without in-person oral arguments—or if COVID-19 will effectively kill appellate oral argument as we know it. Appellate practitioners, stay tuned.

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