2.2 JURISDICTION ININTERMEDIATECOURTS OFAPPEALS
The rules are somewhat different in intermediate courts of appeals. Generally, state and federal intermediate courts of appeals will hear any appeal of a final order if the appellant has met specified procedural guidelines.5 The United States Courts of Appeals have jurisdiction over appeals from all final decisions of the United States District Courts.6The courts of appeals also have jurisdiction to hear appeals from a variety of other judicial and quasi-judicial bodies, including, for example, appeals to enforce or challenge orders of the National Labor Relations Board.7
Although most people think of oral arguments when they think of appellate advocacy, federal intermediate courts of appeals often decide cases without oral argument.
Although, according to the rules, oral argument is presumed, a three-judge panel can vote unanimously that oral argument is unnecessary in a given case for any of the following three reasons:1. The appeal is frivolous. 2. The dispositive issue or issues have been authoritatively decided. 3. The facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.8
What this rule means in practice is that a large percentage of cases are assigned to the socalled summary docket, and many of those are decided based on memoranda submitted by law clerks and staff attorneys who have reviewed the party briefs. The courts’ statistics indicate that in the year ending December 31, 2017, about 80 percent of the appeals terminated on the merits were decided without oral argument.9 When cases are on the summary docket, some judges make their decisions based on staff memoranda alone; they may not read the briefs in full at all. The practical brief writer will presume that oral argument will not be granted, and will write a brief that can persuade a law clerk as well as a judge.