Three members of the federal appeals court based in Denver provided a rare glimpse on Thursday into their work of deciding cases, sharing both words of encouragement and warning about how to best present an argument in the U.S. Court of Appeals for the 10th Circuit.

“Think about oral argument as a conversation,” said Judge Allison H. Eid of Colorado. “We’re not there to trip you up. I think some people think that, and that’s just not the case. We honestly have questions and we want you to answer them.”

In a virtual event sponsored by the Oklahoma City Chapter of the Federal Bar Association, Eid – along with Judges Robert E. Bacharach of Oklahoma and Veronica S. Rossman of Colorado – spoke about certain idiosyncrasies of the 10th Circuit, which hears appeals in federal cases arising from Colorado, Oklahoma, Kansas, Utah, New Mexico and Wyoming.

Specifically, they addressed the rarity of all-judges’ reviews of cases – known as “en banc” hearings. Federal appeals courts typically issue decisions through three-judge panels, but the judges may elect to jettison a panel opinion and rehear a case en banc under limited circumstances.

Between March 2021-2022, there were 1,340 appeals filed with the 10th Circuit. However, in recent years, 10th Circuit judges have granted fewer than one en banc hearing per year, on average. The most recent en banc decision out of Colorado involved a high-profile constitutional challenge to the state’s Taxpayer Bill of Rights, with four opinions issued between the nine participating judges.

“There’s not been an en banc since I’ve been on the court,” said Rossman, who was appointed in 2021.

Bacharach pointed to the two established justifications for an all-judges review. First, if the 10th Circuit has issued conflicting panel decisions that cannot be harmonized and, second, if the case presents a question of “exceptional importance.”

“Maybe it has a lot of politically charged issues. But what makes that more exceptional from a public interest standpoint than another case?” he said.

Bacharach elaborated that if the stakes of an appeal were the only metric, a death penalty case would always receive en banc review before other types of cases.

“It is a very amorphous area to decide what is exceptionally important,” he said. “They’re all very important. They’re important to the parties. They’re important to us.”

All three judges agreed oral arguments are best when they proceed conversationally. Rossman cautioned that reciting the facts of the case at the outset is generally unhelpful to the court’s ultimate task of deciding whether to reverse a trial judge’s decision.

“We are very prepared in coming to the bench truly understanding what the case involves,” she said. “I want you to tell me what I need to know to help you win.”

Bacharach advised lawyers to listen to and respond to the judges’ questions, without attempting to “play chess” and think about any deeper significance to the inquiry.

“There could be 1,000 different reasons for us asking the question. Maybe we don’t understand a core fact that took place or what exactly the argument is,” he said. The best practice is to “not exaggerate or do all of the things that would turn anybody off – ridiculing the district judge, ridiculing the other side.”

For cases not governed by existing decisions of the 10th Circuit, Bacharach added that consideration of other circuit courts’ opinions can be valuable. In particular, he said, the 10th Circuit’s own precedents require it to “be reluctant to create a conflict” with its peer courts.

“With all respect to the brilliant district judges, magistrate judges and administrative agencies that we review, I do tend to put less stock” in those decisions, he said. Nonetheless, lower court rulings and even law review articles are “all valuable tools in our toolboxes.”

Eid, a former member of the Colorado Supreme Court, said she likes to see amicus – or “friend of the court” – briefs submitted by outside organizations. Those filings, she explained, can present a different view on the legal question.

“Sometimes, we get amicus arguments, they’re just like, ‘This is our factual issue and we just wanna talk about it.’ And it has no relation to a legal argument in the case. That’s not very helpful,” Eid said.

Finally, the judges encouraged attorneys to think about the appearance of their submissions to the court. Some legal scholars have examined the readability of judicial opinions based on their formatting, and Rossman similarly voiced her “strong feelings” about lawyers’ own filings.

“Of course, your font is not going to dictate the result of the case,” she said. But “if it’s difficult to engage with your brief because of how it looks, that’s challenging.”