Monday, October 23, 2017
Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday. I won't repeat her discussion, but I wanted to focus on a few other points.
The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts. As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."
According to the report, there are four federal circuits with oral argument rates in the teens. The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument. The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument. According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015. In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases. And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?
Some of the decline can be attributed to the rise in cases appealed. In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%. It would be incredibly difficult for judges to hear argument in every case given the large number of appeals. Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal.
Still, oral argument has its purposes. In chapter 3 of Winning on Appeal, we set out some of these purposes. For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case. For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position. In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities. While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.