But Winn continues:

“When one listens to the oral argument or reads the transcript, one recognizes that it was counsel for the petitioner who first took the position that the manner in which the issues had been framed (by reference to a ‘constitutionally protected area’) needed to be altered, and who reformulated the issues into exactly the manner ultimately adopted by the Court. It appears that the oral argument persuaded the Court to reformulate the issues. However, instead of acknowledging flaws in the earlier cases and correcting the analysis, the Court’s opinion blames counsel for getting it wrong.”

At least the oral argument helped the Court reach its conclusion, if not a perfect one. I use this example only by way of saying that I count myself among the group viewing oral argument as beneficial in most instances.

I recall dimly from Civ Pro (which I took long ago) that in the Old Days the the rules of pleading were quite different from today’s rules. If that foggy memory is correct, could it be that oral arguments were more important than they are today, and so the fading of the practice reflects changed pre-hearing practices? Could it reflect greater access to research materials, leading to more complete briefs and less need to flesh-out arguments in oral presentation?

Thanks for the interesting discussion.

Your last point, I think, raises one of the more interesting aspects of appellate courts doing away with oral argument. How would this affect public perception of the courts–both in terms of legitimacy and fairness? As most in the profession realize, much of the appellate court’s work is done behind closed (even locked) doors, but the oral argument is an opportunity for the bar and the general public to get a glimpse of the court’s decision-making process. Without the argument, I wonder if the work of appellate courts would become even more “mysterious” to the general public, and then the court’s decisions would be perceived as less authoritative. Holding argument, in my opinion, assures the public and the litigants that the panel has heard, considered, and contemplated the positions of all parties to the litigation.

Finally, as an aside, oral argument is great for the law clerks! It’s somewhat of a break from the daily clerk duties (at least for a few hours in the midst of the day), it provides an illuminating preview of the panel’s vote, and it often provides the most entertaining moments of the term.