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Many lawyers and judges lament the vanishing oral argument. Where is that opportunity to do what we all dreamt of in law school—making the perfect argument that snatches victory from the jaws of defeat? Prevailing when the cause is hopeless? Then why is this most cherished of experiences going the way of the dinosaur? I have some thoughts.
Who has the onus to compel the scheduling of oral argument? It is not the court. Lawyers complain that courts choose to rely on the briefs to resolve disputes because it is easier. I choose to look at the briefs as an opportunity, often lost, for the advocate to compel oral argument. Courts need to husband their resources. All would agree with that proposition. Oral argument cannot be held in all cases. True, some judges need not be coaxed if the subject matter is of particular interest, but that circumstance is rare. The advocates must force the hands of the court. It is the waning skill of wordsmithing that is most responsible for the disappearance of oral arguments.
When I pick up a brief, I do not expect to be wowed. I do expect that the advocate will take every chance to persuade. The introduction, the facts, the summary of the argument, and the meat of the case—the argument section itself—are each ripe with opportunities to pique the interest of my colleagues and me to order oral argument. How do you—to use a current colloquial phrase of my clerks—make it pop!?! How do you make the prospect of oral argument seem intriguing? This is the skill that is lacking. My colleagues and I long for those cases that are not obvious, where there is conflicting precedent or the lack of clarity. It is not up to us to convince ourselves that your case fills that longing. It is up to you.
Potential Reasons for Decline
Some say that the reason for the dearth of oral arguments is twofold: Judges are lazy, and they choose not to engage. Judges are concerned about statistics and find it is easier to produce dispositions without the interjection of oral argument. The judges believe it’s all in the briefs, so why waste the time when I have thought about it and made up my mind?
That is Justice Thomas’s famous assessment of oral argument—I have thought about it, read everything, and oral argument is not helpful because I have made up my mind. Is it the justice’s fault that the advocates have not sufficiently enticed him intellectually to make him savor the opportunity to engage? I think not. Is the justice an outlier? Certainly not. Many of my colleagues avoid oral argument at all costs. I say to advocates: Do not despair. Oral argument decisions are not the result of a vote (at least not in our circuit). One judge alone may order a case to be heard.
Lawyers often fail to weave into their briefs the not necessarily obvious reasons for oral argument. Is there a reason for argument on one issue rather than all? This is a strategy infrequently employed but quite enticing to a court: Judge(s), here is a potentially case-dispositive issue. We seek a truncated argument time to address solely this issue. If the scales are in equipoise, this could be what tips them in favor of argument.
Another strategy is suggesting argument on the appropriate line of demarcation. Appellate courts are constantly engaged in determining where the proverbial line should be drawn. “How should we be thinking about this” is a frequent refrain. Anticipate this question and create your opportunity.
The argument goes that judges believe it takes too much time to prepare for oral argument. Becoming immersed in the record, in the briefs, and in those pesky precedents that are so dense is just too much. Hence, judges avoid engagement at the cost of a fruitful and beneficial exchange of ideas. This argument is far too simplistic to truly sustain any credence. Judges do not cower when presented with a challenge.
Judges are asking, “Why should I expend my resources on this case?” To be clear, it is a question we ask, but it is not dispositive. What is dispositive is, am I interested? What have you done to make me say I need to—no, I must—expend my effort, stamina, and intellectual acuity to solve this conundrum?
I would be remiss if I did not address the elephant in the room. Does your case really merit oral argument? Not every case warrants the attention and intellectual focus of oral argument. Some issues actually are susceptible to resolution on the papers.
We judges are not our brothers’ keepers. We are asked to resolve cases correctly and with alacrity. If you want more oral arguments, make us do it! Compel us, persuade us, even cajole us. Law is subject to trends and changes. If judges believe there is a tangible advantage to oral argument, it will happen. Make your brief the tool of persuasion. If you do, maybe you will see me in court.