chevron-down Created with Sketch Beta.
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.


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).

Circuits use visiting judges to manage their caseloads, especially in cases of judicial vacancies. However, this practice has consequences beyond effective case management. For example, one study found that district court judges who sat by designation on a federal circuit panel in a patent claim construction appeal had a significantly lower reversal rate by the federal circuit in subsequent decisions. See Mark A. Lemley & Shawn P. Miller, If You Can’t Beat ’Em, Join ’Em? How Sitting by Designation Affects Judicial Behavior, 94 Tex. L. Rev. 451, 452–53 (2016) (“[O]ur data suggest that individual judges themselves are treated differently after they sit by designation. We also demonstrate that this result is not a function of learning by the district judge but rather reflects a personal connection between the judge and the members of the reviewing court.”).

Some judges have taken advantage of visiting opportunities to disagree with their own circuit’s precedent. For example, Judge Cudahy departed from the U.S. Court of Appeals for the Seventh Circuit’s jurisprudence while sitting on the Ninth Circuit. See MetroPCS, Inc. v. City & Cty. of S.F., 400 F.3d 715, 734–35 (9th Cir. 2005) (addressing the proper test for a “significant gap” in service under the Telecommunications Act), abrogated by T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808 (2015). Perhaps most famously, Judge Rakoff of the U.S. District Court for the Southern District of New York seized on a Ninth Circuit visit to disagree with a Second Circuit decision that reversed him on an important question of insider trading law. See United States v. Salman, 792 F.3d 1087, 1093–94 (9th Cir. 2015), aff’d, 137 S. Ct. 420 (2016).

Tips: Oral Argument Before a Visiting Trial Court Judge

In the majority of federal circuit courts, oral advocates receive notice of their panel assignment before the day of argument. The following tips can help advocates in those circuits who learn that their panel includes a district court judge.

1. Research the judge’s prior opinions about the issues on appeal. In many cases, the judge will have written about the issues on appeal, given the frequency with which district court judges write. Some opinions might contain only a straightforward application of binding circuit precedent, but others might hint at dissatisfaction with circuit precedent, discuss policy considerations, or reveal judicial philosophy relevant to how the judge will approach the issues on appeal.

2. Listen to oral argument recordings from cases before the judge. If the judge has sat by designation on a court of appeals before, the audio recordings from prior sittings might yield valuable insight, such as the type of questions that the judge likes to ask and the frequency with which the judge interjects. If the judge has not sat by designation before, it can be helpful to listen to audio recordings of arguments in trial court (if available) or other speaking engagements to get a sense of the judge’s manner of speaking. At a minimum, transcripts of proceedings before the trial judge might provide clues about the judge’s questioning style, which can minimize surprises on the argument day.

3. Appraise the key arguments through the lens of a trial court judge. District judges and circuit judges have different institutional roles. On the trial court, case management looms large, and judges play a more active role in developing and deciding the facts. They also grapple with the complexities of applying law to novel or unanticipated circumstances. This institutional role may inform how district judges approach cases when they sit on the appellate bench. For example, they may be more deferential to fact-finding that took place below. They may focus more on practicalities and consequences of rules of law and push for outcomes that provide adequate guidance to district courts charged with applying those rules. And they may be more inclined to remand rather than reverse, especially in cases where it appears that the trial judge did not have a full and fair opportunity to pass on issues squarely presented for the first time in the court of appeals. See, e.g., Oliveira v. New Prime, Inc., 857 F.3d 7, 24 (1st Cir. 2017) (Barbadoro, J., concurring in part and dissenting in part) (disagreeing with majority’s decision to address a Federal Arbitration Act exemption because “if it ultimately proves necessary to determine [the exemption’s scope], the district court should do so in the first instance with the benefit of more in-depth briefing and a fully developed factual record”), aff’d, 139 S. Ct. 532 (2019); Faustin v. City, Cty. of Denver, 268 F.3d 942, 953 (10th Cir. 2001) (Jenkins, J., concurring in part and dissenting in part) (disagreeing with majority’s decision to reverse rather than remand because “[t]he district court was not presented with a challenge to the city policy . . . and should have the first opportunity to address the question of standing as raised in that context”).

4. Consider the intrapanel dynamics. Even when a particular trial court judge visits on the court of appeals with some regularity, that judge does not have the same repeat-player incentives as circuit colleagues. The visiting trial court judge may therefore be more willing to express differing views through a concurrence or dissent; similarly, the circuit judges may feel less pressure to accommodate the visiting judge’s views in a compromise position. Understanding these dynamics and incentives may help advocates adapt their presentations as areas of overlap or disagreement become clear during the argument itself.


By adapting their preparation in these ways, advocates can tailor their presentations to persuade not only the circuit judges whom they expected to see on the bench but also the unanticipated visitor from federal district court.

Lauren J. Hartz is a litigator in the appellate & Supreme Court group at Jenner & Block in Washington, D.C.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).