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March 01, 2016

Sua Sponte: A Judge Comments

A federal appeals judge comments on the importance of oral argument.

Hon. Barry G. Silverman

Download a printable PDF of this article. (Sua Sponte begins on page 2).

When is the last time you wrote an appellate brief and deliberately omitted any mention of the dispositive fact or point of law that wins your case, just so you could spring it out at oral argument?

I suspect never.

One of the dirty little secrets of appellate practice is that oral argument rarely changes anything, and that’s not because we appellate judges are geniuses who have mastered all human knowledge. Rather, it’s because we’ve read your briefs, in which you’ve told us in writing, often ad nauseam, what the law and the facts are, what your position is, and why.

If you’ve done your job of presenting a well-researched, cogent brief, then what you say in oral argument is almost always a rehash of what you’ve written. If we judges didn’t have a crushing backlog, or if we had unlimited time, it wouldn’t be such a big deal to travel to San Francisco, New Orleans, or wherever, and spend several hours a week in open court listening to oral renditions of the very same things we just got finished reading.

John Henry Wigmore famously said that the rules of relevancy are an accommodation to the shortness of human life. I think the same can be said of submitting most appeals on the briefs. In my experience, the cost of oral arguments in terms of judicial and lawyer time, money, and decisional delay usually outweighs the benefits. Time spent listening to a reiteration of what we’ve already read is time not spent on other cases.

Like everything involving the law, there are a few exceptions. Some lawyers don’t write well. They need oral argument to articulate what they can’t seem to convey in writing. Some cases are unusually complex or confusing, and the judges simply don’t understand the story, or the argument, or how a byzantine statute works. In such cases, argument can de-muddy the waters.

Sometimes the judges spot something or think they’ve spotted something (a fact, a precedent, a theory) that hasn’t already been answered by the briefing. Martin Siegel’s idea of emailing questions to counsel—a modern variation on court orders directing the filing of supplemental “letter briefs”—is an excellent one. As he points out, some courts already do that.

Even so, sometimes in appellate adjudication, as in life, it is more productive and efficient to have a face-to-face dialogue than an email exchange. On those occasions, oral argument does indeed serve a useful purpose. But those occasions are the exception, not the rule.

Everyone going to the emergency room deserves to be carefully triaged. Still, the guy having a stroke rightfully gets more time than the guy who hit his thumb with a hammer. The same principle should apply to the scheduling of oral argument. Every appellate case should be evaluated for whether the briefs adequately address the issues presented. If so, we can read and, if necessary, reread them; we don’t need them read to us. If an unusual situation is presented, then the case should be set for argument.

One last thought: If you’ve written a good brief, one that’s better than the other side’s, give serious consideration to affirmatively waiving oral argument even if the court doesn’t submit the case on its own. If you’re already ahead on paper, all oral argument can do is give the other side a chance to make up for lost ground. Remember, you have the right to remain silent.

Hon. Barry G. Silverman

The author is a judge on the U.S. Court of Appeals for the Ninth Circuit.