16 April 2007

Should There Be Oral Arguments on Appeal

HOWT's posting on the grading of appellate arguments brought a question to mind: Should there be oral arguments in appellate courts?

After a little thought, my answer is that there should not. My primary argument for this is that appellate court decisions are supposed to be dispassionate, considered, legal decisions. An oral argument is necessary in an actual trial because the time is not available to write out legal briefs for every issue that comes forward during a trial. However, appellate courts and parties do not face this dilemma; they have months to research and brief pertinent legal arguments. Basically, an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges.

Why do we have oral arguments in the appellate courts? With my imperfect understanding of the evolution of Ameri-English jurisprudence, I think they are a relic of times long past when they were necessary. In my head I see a peasant whom the sheriff has decided owes 6 loaves of bread a week as tax going in front of the local nobleman and "appealing" this decision on the one day a month the nobleman has set aside for this sort of thing. Or, perhaps it comes from a time when a trial took place in one corner of a province and the court which sat in appeal was in the center, without reliable mail service and days away by horseback, so that the attorney actually had to travel to the appellate court and make his argument in person.

Whatever the reason that oral arguments came into being, the main reason that attorneys still like them is that they convey prestige upon those who are called to argue in front of the judges. By implication when an attorney is called before the appellate panel his arguments have intrigued the judges or he's put forward an issue of significant legal importance, or the attorney is so well respected that his name alone carries sufficient weight to cause the judges to docket it; in reality, all three probably weigh in to every decision to accept an appeal (this is, of course, not counting those courts required to take appeals). In any event, they are basically rewards; a notification to other attorneys that this guy is significant enough to argue in an appellate court. Don't believe it? Walk into the office of any attorney who has argued in the federal supreme court and see if he doesn't have a white feather around.

Why don't the judges push to do away with oral arguments? I'm not sure. Perhaps it is because they are lawyers too and have been trained to unquestioning adhesion to procedures as they have always been. Perhaps because life as an appellate judge could get mighty boring without oral arguments; they'd spend all day, every day in a law library or in front of a computer without much contact with anyone.

My secondary argument against oral arguments is that they don't seem to have any positive effect. I remember reading a quote from a Justice when asked if oral argument had won a case that none had, but that some had lost the case. I've only argued one case in front of an appellate court, but I've seen a number of others. I've never seen a case where it didn't seem like judges/justices hadn't already staked out a position prior to the beginning of argument. In the modern era of attacking judges even if only one or two have chosen a position an attorney isn't going to get the chance to persuade anyone; he will be hectored from the moment he starts with questions.

In the end the question really is: What's the point? Setting up and carrying out an appellate oral argument which end up being incomplete snatches of the argument as a whole makes little sense. Appellate courts would run far more efficiently if they relied solely on briefs or if there was a presumption against oral argument which could only be overcome if 2/3 of the judges on a particular panel voted to have one (of course, think of the prestige that would attach to an oral argument in that system). Oral argument fits far better in a trial court where there are arguments of the moment and attempts to sway the fact finder(s) as to what the actual facts are. In an appellate court, where the facts have already been pre-decided, it would be better to rely upon well briefed, complete arguments in a written format.

*** Of course, this is a step back and consider it all argument. If the federal supreme court should decided that I will have the privilege of arguing in front of it I'm not going to turn them down. ;-)

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