Academic journal article Journal of Appellate Practice and Process

Written and Oral Persuasion in the United States Courts: A District Judge's Perspective on Their History, Function, and Future

Academic journal article Journal of Appellate Practice and Process

Written and Oral Persuasion in the United States Courts: A District Judge's Perspective on Their History, Function, and Future

Article excerpt

The idea for this article developed several years ago as I was preparing to teach a course at the University of Melbourne Graduate School of Law, called "Effective Written Advocacy." The course coincided with a trend in Australian courts toward a more writing-focused appellate process, while Canada had embarked on a similar transformation of its appellate practice more than a decade before. I wanted to know why, relatively early in our history, courts in the United States had rejected the oral tradition of the English legal system--both in advocacy and judicial opinions. My curiosity also coincided with an experiment I had been conducting since my confirmation as a federal district judge, which is to hold oral argument on virtually every motion of any substance, something I am told is not the norm in federal courts across the country. I wanted to think more systematically about the differing functions served by written and oral persuasion and why I found oral argument so enormously valuable. Finally, I wanted to consider the future of oral argument in a court system that is focused so heavily on efficiency.

My purpose is to provoke discussion, not provide solutions. I am heavily in the debt of those who have considered these issues in much greater depth than I--none more so than Professor Suzanne Ehrenberg, the author of a wonderful article entitled Embracing the Writing-Centered Legal Process. (1)


As we all know, the English legal tradition has long favored speech over writing. Until relatively recently, everything English judges learned about a case, they learned at oral argument. They also issued oral judgments and do so to this day, although now they more often deliver them after reserving decision rather than proceeding ex tempore--that is, immediately following the oral argument. That the English courts chose a speech-centered legal process should come as no surprise, as speech has been the favored method of communication throughout the history of Western culture. Oscar Wilde noted that the "Greeks ... regarded writing simply as a method of chronicling. Their test was always the spoken word." (2) And as Professor Ehrenberg reminds us, Plato has Socrates explain in the Phaedrus that the written word is incapable of expressing thoughts as precisely as the spoken word. As Socrates puts it, while written words may seem to "understand what they are saying ... if you ask them what they mean by anything they simply return the same answer over and over again." (3)

At its inception, the United States borrowed much from the English legal system, relying heavily on Blackstone, Coke, and others to shape our legal culture. In fact, an order of the Supreme Court on August 8, 1791, advised that

   this court consider[s] the practice of the courts of king's bench,
   and of chancery, in England, as affording outlines for the practice
   of this court; and that they will, from time to time, make such
   alterations therein as circumstances may render necessary. (4)

However, early on, the courts of the new nation began to opt for a legal process in which writing played an increasingly critical role. Of course, we chose a written Constitution, with enumerated individual rights, and our courts also embraced a writing-focused legal process. This emphasis on writing appears to have begun with courts' own judgments. In fact, in 1784, the Connecticut legislature passed a law (the first in the nation) requiring all judges to "reduce to Writing" the reasons for their judgments. (5) Many other states followed suit, so that, as Professor Tiersma notes, "American judges at the close of the eighteenth century were already beginning to draft their opinions in writing." (6) And Professor Surrency, in his seminal History of American Law Publishing, reports that "[a]ll evidence suggests that written opinions became the accepted practice within the first decades of the Nineteenth Century. …

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