Friday, April 20, 2007

Should appellate oral argument be curtailed or abandoned??

This is an interesting question. In my experience as a judicial clerk in the late 1990s, oral argument rarely, if ever, made a difference. Appeals, for the most part were won or lost on the briefs. However, I will also admit that as an appellate advocate, I have relished the opportunity to argue because after further study of the issue and authority, the light bulb has gone off and I "discovered" a better way to present the argument than I had done in my brief. Thus, in my mind at least, I thought argument could make a difference.

Of course, one could also be cynical and suggest that oral argument be retained for the benefit of partners in large firms. Without oral argument, which they always insist on doing themselves, the appellate process would be purely associate driven (since we all know that associates are the ones who craft the the arguments, do the research, and draft the briefs). Heaven forbid that such an important role be put in the hands of young lawyers!

Anyway, the debate on this issue between Crimlaw Blog and Have Opinion Will Travel is worth a read.

Ken over at Crimlaw Blog makes this case for doing away with oral argument:

My primary argument for this is that appellate court decisions are supposed to be dispassionate, considered, legal decisions. An oral argument is necessary in an actual trial because the time is not available to write out legal briefs for every issue that comes forward during a trial. However, appellate courts and parties do not face this dilemma; they have months to research and brief pertinent legal arguments. Basically, an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges.

Have Opinion counters and asserts that oral argument still has meaning:

First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.

Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when
the briefs are poorly written
, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.

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