June 03, 2019 Articles

Wild Cards: Oral Argument Before a Visiting District Court Judge

Accounting for perspectives of district court judges on circuit panels.

By Lauren J. Hartz

“Who’s on the panel?” Appellate advocates field this question countless times in the run-up to oral argument. In most cases, the answer is a trio of circuit judges in the federal appellate court holding the argument. But every once in a while, the answer includes the judicial equivalent of a wild card: a visiting judge. When the visitor is a federal trial court judge, the tips outlined below will help the advocate prepare for the unique perspectives and dynamics that the visitor brings to the panel.

Background

Federal appellate courts can receive visitors from within or beyond their circuit boundaries. Those visitors can be federal circuit judges, federal district court judges, or federal judges from the Court of International Trade. While each court of appeals can issue its own rules and regulations for visiting judges, the basic statutory requirements are the same nationwide: the chief judge of the circuit has authority to designate a district judge within the circuit to sit on that court of appeals, whereas intercircuit visiting requires approval by the chief justice of the United States. 28 U.S.C. §§ 292(a), (d).

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