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

By Cleveland, David R.; Wisotsky, Steven | Journal of Appellate Practice and Process, Spring 2012 | Go to article overview

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


Cleveland, David R., Wisotsky, Steven, Journal of Appellate Practice and Process


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.