Monday, February 17, 2014
Catching up on some blog reading over the weekend, I noticed that the Sixth Circuit Appellate Blog has a recent post on the issue, Practitioner Perspective: Oral Arguments. How timely. The post is an interview with Sixth Circuit Appellate Blog Editors, Pierre Bergeron and Phil Calabrese, and it covers several different issues related to oral arguments. The pair gives some great advice, particularly on preparation and directness. As this blog has previously noted, appellate courts expect a high level of preparation and expect you to respond to their questions and address their issues. Being unprepared or unresponsive is a recipe for disaster.
What interested me most, though, were the first couple paragraphs about the importance of oral argument. As I'm sure my last post made clear, I think it's very important, and at a systemic level, it bothers me that both the number and duration of oral argument has been diminshed. So I was interested in the practitioner's perspectives:
What is your view on the current importance of oral arguments?
Pierre: For the average appeal, oral arguments are less important today than they used to be. And you see courts cutting back on the number of oral arguments in recognition of that fact, instead relying on the briefs. But the flipside of courts cutting back on the number of oral arguments is that when you are scheduled for oral argument it suggests some significance. So you could also view oral arguments today as being more important than ever because if the court schedules your case for argument then it has probably decided that something in the oral argument could help its decision.
I agree. As a descriptive matter, fewer oral arguments means that orality is less important to appeals than briefing. But when you are granted oral argument, it takes on greater importance than in the average appeal. It signals that oral argument may allow one to influence the court.
Going beyond the descriptive, oral arguments are important for several reasons, including providing litigants: 1) engagement in the decisionmaking process; 2) an opportunity to be heard; 3) an opportunity to affect the outcome; and 4) the opportunity to affect the scope or breadth of the decision, even if the outcome is unchanged. There are also benefits to the judiciary and legal system such as greater legitimacy, transparency, and judicial engagement.
Check out the whole post, it's a quick read with some good practitioner insights.