The Decline of Oral Argument in the Federal Courts of Appeals: A Modest Proposal for Reform

Article excerpt

I. INTRODUCTION

Federal appellate practice is not what is used to be. In the 1970s, oral argument was routinely granted and it was generously sized at thirty minutes per side. After a period of dramatic shrinkage in both frequency and length in the 1980s (1) and 1990s, the role of oral argument has been greatly diminished. It is now the exception rather than the rule. In 2011, only one quarter of all federal appeals were orally argued, (2) down from nearly two-thirds in the early 1980S, (3) and the time allotted in most circuits was limited to fifteen minutes or less.

The drastic reduction in the frequency of oral argument and its length has been driven largely by considerations of efficiency as reflected in the universal adoption of case-screening methods that shunt aside the majority of cases to a summary or non-argument calendar. (4) This separate decisional track involves "a significantly lesser degree of personal attention by judges" (5) by placing "primary reliance for the operation of the screening process on a centrally-organized, parajudicially-supervised group of staff attorneys." (6)

The federal rule on this issue acknowledges the importance of oral argument, but in practice permits it to be both brief and rare. (7) Procedural efficiency comes with a cost, (8) of course, and the extraordinary reduction in oral argument has diminished its role. (9) The decline of oral argument has been one casualty of the procedural reforms made in response to the crisis of caseload volumes that began in the 1980s. (10) Reduction in oral argument has been described as a response to pressure, taken almost against the courts' own will. (11)

The result is a more efficient but more paper-driven bureaucratic process of appellate decisionmaking. There is less input from the lawyers. The values implicit in appellate review are weakened or diluted. (12) Moreover, there is a disturbing appearance of correlation between the decline in frequency of oral argument and the decline in reversal rates in both civil and criminal cases. For example, Judge John Godbold cited data in 1994 showing a decline of one half in the overall federal appellate reversal rate from 1982 to 1993, from 19.9 percent to 10.3 percent, with a significant decline in every category of appeal. (13) By 2011, the reversal rate had fallen further, to 8.9 percent overall and 5.8 percent in criminal cases. (14)

Could the decline in reversal rates and the decline in frequency of oral argument be coincidental? They could. Or one might say that better screening procedures have increased the accuracy of appellate decision making to a more "correct" reversal rate than the historic figures. But one might also reasonably suspect that the very same process that shunts the vast majority of cases to the summary calendar is responsible for an institutional readiness to dispose of the cases by affirming the decisions below. Thus, the authors fear, though they are not the first to do so, that "[w]e have lowered our expectations for appellate procedure. We have defined down our appellate values. We all have internalized the postmodern norms of the minimalist procedural paradigm." (15)

Oral argument is too central to the appellate process and too valuable to sacrifice on the altar of efficiency. We propose a return to a greater role for oral advocacy. (16) Part I of this article briefly outlines the importance of oral presentation in Western culture, modern communication, and traditional common law argument. Part II collects the federal rule of appellate procedure and corresponding local rules and internal operating procedures that govern the grant, or more often the denial, of oral argument. Part III examines the numerous and varied values of appellate justice that are served by oral argument. Part IV demonstrates the dramatic decline of oral argument since 1970. Finally, the authors propose modest reforms for restoring a greater role for oral argument in the federal courts of appeals. …