Does appellate oral argument still matter? In some courts with exceptionally heavy caseloads, such as the Wisconsin Court of Appeals, oral argument is vanishingly rare. But even in courts that regularly hold oral argument, some observers claim that it has devolved into a dog-and-pony show unlikely to move judges who have already reached unspoken decisions based on often-voluminous briefing.
It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument. Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4th District, 2nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”
Proponents of the practice contend that it has several distinct advantages. According to the California court’s website, many parties simply agree to cancel oral argument after seeing the tentative opinion. Even if oral argument proceeds, it is much more focused because counsel are well aware of how the judges are thinking about the case and which issues are most important. Less frequently, counsel may even notice errors in the tentative opinion’s discussion of the underlying law or facts, and use the oral argument to correct them.
If the first point is true, the practice seemingly amounts to suppression of oral arguments that would otherwise occur. I am sympathetic to but not persuaded by the accompanying claim that this outcome may save time for the courts and money for the litigants. I still believe there is significant value in oral argument. Some of the reasons are obvious. In a few cases, the panel really will be on the knife’s edge of indecision because the case is so close. In other cases, the argument allows the litigants to correct any misimpressions of the governing facts or law made by harried judges or law clerks before they are set in ink. If an opinion, however tentative, has already been issued, it seems to me that judges will be more defensive about its perceived weak points.
Oral argument also allows the panel to “argue” to one another by asking leading questions and thus ensuring that certain points will be stressed to their colleagues. Speaking as a former law clerk on an appellate court, I think litigants should not underestimate the importance of this point. Advocates always ready themselves for the hard questions, but don’t do enough to run with “softball” questions that will almost inevitably come. In the very close cases, members of the panel often are forced to become advocates for one side or the other in the judicial conference room.
Finally, I think there is an intrinsic and cathartic value in telling the appellate court why the lower court got it wrong. In my experience, this holds true both for lawyers (directly) and the clients they represent (vicariously). When citizens see that the nation’s highest courts allow litigants to tell their stories and correct mistakes, it can provide a much-needed boost to public confidence in the judiciary and the judicial system.
Intriguing post, Mr. Strifling!
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.
A question (asked out of genuine ignorance):
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.
I was just reading an interesting article entitled “Katz and the Origins of the ‘Reasonable Expectation of Privacy’ Test,” 40 McGeorge L. Rev. 1 (2009), and couldn’t help but to think of this post. Peter Winn notes the Supreme Court’s opinion in Katz begins, uncharacteristically, by attacking both the petitioner’s attorney as well as the government’s. The Court’s criticism is focused on the way the parties have formulated the issue presented by the case and culminates in the Court’s famous line declaring “the Fourth Amendment protects people, not places.”
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.