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February 18, 2020 Appellate Issues | Winter 2020

The Vanishing Oral Argument: Why It Matters and What to Do About It

By Robert P. Coleman III

The last day of the 2019 AJEI Summit held plenty of excitement for those of us who were eager to discuss appellate oral argument.  As an appellate practitioner who loves this portion of my cases, I was interested to hear whether there is a concerted movement amongst practitioners and judges to reverse the trend of vanishing arguments. 

The turnout was strong, and attendees were less formally clad than on the preceding days of the convention.  It was a travel day for most, after all.  But before we dispersed back to our respective corners of the country, there was a discussion to be had about this unique aspect of appellate practice.  Jim Layton had the honor of moderating, and the panel tasked with leading the conversation consisted of Jim Martin, a partner at Reed Smith; Hon. Douglas Nazarian, a judge on the Maryland Court of Special Appeals; and Hon. Barbara Milano Keenan, a judge on the U.S. Court of Appeals for the Fourth Circuit. 

Jim Martin kicked things off with an explanation of what was meant by “The Vanishing Oral Argument.”  It turns out that we owe this concept to the Oral Argument Task Force within the American Academy of Appellate Lawyers, who went about determining whether there was a decrease in oral arguments at all.  They found that there was, in fact, a paucity of oral argument throughout the country.  Based on crowd reaction, this was a non-controversial finding.  The bigger questions, at least according to the title of the presentation, were does this trend matter, and, if so, what do we do about it?

Yes, it does matter.  At least that was Martin’s view and the view of the Oral Argument Task Force.  Martin cited the decisional, professional, and systemic benefits of oral argument—more on those later.  For the time being, Martin added that attorneys could do something about this alarming trend: be better prepared for arguments.  This point really struck me. 

Do some lawyers fail to prepare for their arguments?  Don’t they value the court’s time?  Don’t they care about their professional reputation?  Don’t they want to win?  My perplexity turned to frustration when I realized a few underprepared attorneys could be ruining the chance for the rest of us to participate in one of the most meaningful and exciting aspects of our practice.

Next, Judge Nazarian explained that, from his perspective, oral argument is not only helpful in that individual case, but it also piques his intellectual curiosity by exposing him to discussions with attorneys in different types of cases.  Similarly, Judge Keenan expressed her opinion that oral argument is often valuable from the judicial perspective.  It presents the opportunity for her to learn about the opinions of her co-panelists and address their concerns.  And although oral argument does not usually fundamentally alter Judge Keenan’s opinion regarding the outcome of a case, it does provide the chance for her to gauge the strength of her rationale for arriving at that outcome. 

Returning to the study conducted by the Oral Argument Task Force, Martin listed several reasons why oral argument is important.  First, oral argument provides a unique opportunity for attorneys to converse with judges and be a part of the decision-making process.  Second, oral argument is valuable for clients, who can see their concerns being addressed by the court and better understand how invested the judges are in the case.  Third, oral argument serves to sharpen decisions and facilitate discussion amongst the judges.  Fourth, oral argument is the only opportunity for the public to observe the appellate process.  Fifth, oral argument is educational in that it reinforces not only for the public, but also for the participants, how the appellate process works.  Sixth, oral argument creates professional expectations, and fosters better discipline amongst lawyers.  Seventh, and lastly, oral argument promotes respect for the court. 

Martin then referred to Federal Rule of Appellate Procedure 34, which provides that oral argument should occur in each case, subject to some exceptions.  The Task Force study found that this rule is not followed, and judges are not troubled by this.  Moreover, the Task Force study found that it is a widely held judicial belief that briefing is sufficient for a determination of a case on appeal, and that it is beneficial to forego oral argument, so as to not waste resources.  One of the values of the study, Martin explained, is that if nothing else, it exposed appellate judges to these issues, creating a greater comprehension of the problem. 

But don’t some courts hold more arguments than others?  Yes, and Judge Keenan pointed to the culture of each court as an explanation for this phenomenon.  For instance, in state court in Virginia, the parties have the right to ten minutes of oral argument in each case.  The Fourth Circuit, in contrast, goes through a complex decision-making process to determine whether a case will be argued at all.  A memorandum about each case prepared by staff counsel at the court is viewed by clerks, the staff attorney’s office, and the judges, any of whom can put the case on the oral argument docket.  One might wonder, though, why the presumption appears to be against oral argument, rather than for it.  Judge Keenan admitted that when it comes to deciding whether to place a case on the oral argument calendar, she only considers the legal advantage of doing so, not any of the other factors identified by the study.  Little wonder that the Fourth Circuit has one of the lowest percentages of cases argued. 

Regardless of the culture of a particular court, scheduling oral argument may not be practical.  What about large jurisdictions where the attorneys, the clients, or the court might have to travel a significant distance to hold an argument?  Judge Nazarian explained that his court in Maryland does not encounter this issue given the relatively compact size of his state.  Perhaps for that reason, his court provides for oral argument as of right and rarely faces the difficulty of paneling enough judges to cover all scheduled arguments.  Judge Nazarian’s comments led to a lively discussion of the value of appearing for argument remotely.  Some attorneys in the crowd remarked that the value of the argument comes from the face-to-face interaction with the court, which would be lost if attorneys appeared by video or phone.  Others, many of whom had argued remotely before, explained that although not as valuable as in-person arguments, remote arguments were better than having no argument at all. 

Other considerations were batted around as more attendees spoke up.  One judge remarked that clients might not be interested in paying for the extra preparation and travel necessary to send a lawyer to argument.  Another attendee remarked that judges could draft tentative opinions released to the parties before argument, which could narrow the issues and make arguments more worthwhile for all concerned.  Although the judges on the panel were sympathetic to the idea that narrowing issues for the parties could be helpful, they were reluctant to endorse the idea of making determinations about cases before argument.  The need to keep an open mind, it seems, is important to the judges.  It stands to reason that it would be important to the litigants too, who want the chance to convince the court of their position. 

Martin concluded that, at the end of the day, the question is whether the courts and practitioners want more arguments.  If the answer is yes, we can find ways to make that happen.  The appetite for more arguments appears to exist, but whether that will translate to a resurgence in the amount of oral arguments remains to be seen.

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Robert P. Coleman III

Robert P. Coleman III is an attorney in Washington, D.C., specializing in appellate advocacy.  He obtained his J.D. from Georgetown University Law Center.