Thursday, February 13, 2014
Just over a year ago, Steve Wisotsky and I published an article documenting, and to be frank, bemoaning, the decline of oral argument in the federal courts of appeals. The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform, 13 J. App. Prac. & Process 119 (2012). Oral argument is just one of a number casualties of the caseload crunch of the 1970s and 80s. Oral argument has gone from being routinely granted and thirty minutes per side to rarely granted and often fifteen minutes or fewer per side. This dramatic reduction coincides with an increase in early tracking of cases into those that receive more appellate process and those that recieve less. The decline oral argument also coincides with a significant decline in reversal rates across all categories of federal appeals. Sacrificing oral argument on the altar of efficiency both reveals and causes a significant diminishment of appellate values. Or so Steve and I argue.
So it was with great interest that I read Joshua Stein's article, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime, 14 J. App. Prac. & Process 159 (2013), in which he offers an idea for improving the quality of oral arguments. The abstract:
This article explores use of the tentative opinion, two types of which were pioneered by California appellate courts. In 1990, the Second Division of California’s Fourth District Court of Appeal (which sits in Riverside) began disseminating written draft opinions in advance of oral argument. The measure received acclaim from appellate advocates, but did not beget imitation by other courts. In late 2011, however, an appellate court in Los Angeles (the Eighth Division of the Second District) began issuing tentative opinions orally at the beginning of argument. This approach, referred to here as the “oral tentative,” represents an attractive alternative to the written version, which has failed to catch on in other courts.
I was only passingly familiar with this practice, so it was interesting to read about its use in two districts within the California appellate system. I'm not persuaded that it could, or should, be adopted more widely, though. Issuing a tentative opinion a week or so before the oral argument offers advocates the opportunity to tailor their oral arguments to the judge's concerns at cost of requiring courts to review the case in advance and write a tentative opinion. I understand how this benefits the advocate, and perhaps improves the quality of the oral argument, but it does so by shifting the cost of assessing the most important and persuasive arguments to the courts.
An oral tentative opinion, offered immediately prior to the argument, comes too late to offer advocates an ability to focus their oral arguments. I fail to see how a tentative opinion offered in the moments prior to the argument offers any significant advantage over a judge asking questions or even offering such opinions during argument. The only one that comes to mind is that the oral tentative time doesn't come out of the advocates' very limited oral argument time.
I come away thinking that these practices are a result of the California system's requirement that appeals be resolved within ninety days of submission. This "ninety-day rule" forces judges to issue opinions close on the heels of oral argument. Because the system forces judges to prepare a nearly final draft prior to the oral argument, there is little additional cost to distributing that in some form to the advocates. But for any system without such a built-in requirement, I'm skeptical of its utility or desirability. Still, I recommend Stein's article and invite your opinions on the practice.