Academic journal article Journal of Appellate Practice and Process

Wither Oral Argument? the American Academy of Appellate Lawyers Says Let's Resurrect It!

Academic journal article Journal of Appellate Practice and Process

Wither Oral Argument? the American Academy of Appellate Lawyers Says Let's Resurrect It!

Article excerpt

Oral argument is one of the most written-about, discussed, and debated aspects of the appellate process. Among lawyers, judges, and legal commentators there are disparate views on its value. Some contend oral argument occupies attention and time that is disproportionate to its value to the decision-making process. This viewpoint is often driven by observations that briefs are far more important to shaping the ultimate decision and that oral argument only rarely changes the outcome.

The American Academy of Appellate Lawyers, a nationwide group of experienced appellate advocates, has, for many years, analyzed issues related to oral argument among its membership and with judges and academics. The Academy puts great value on oral argument, particularly from a systemic perspective. Oral argument is, after all, the only time where a party and its advocate can interact with the decision-maker. It is a time when the court's views on the issues are on display for the public and for clients, and counsel has the opportunity to address potential misconceptions or overlooked facts. In that manner, oral argument is the most tangible manifestation of the critical role that appellate courts play in the resolution of public and private disputes traversing our legal system.

Because of its strongly held beliefs, the Academy became concerned about the apparent and verifiable decline in the number of cases, particularly in the federal system, that are listed for oral argument, as well as the shrinking time allotted to those cases listed. These discussions started anecdotally. But eventually they resulted in the Academy's undertaking an initiative to see if steps could be taken to help increase the frequency and usefulness of oral arguments or, at the very least, re-invigorate the appellate courts concerning oral argument's intrinsic and extrinsic value.

The process began with a task force that looked closely at oral argument practices in the various federal circuits. In tandem with that effort, a statistical analysis was undertaken to try to make a meaningful evaluation of the frequency of arguments in the various circuits and develop some appreciation for the types of cases being argued. After gathering this foundational information, the task force, with input and insights gained from the Academy's membership, produced a report outlining the Academy's views on steps that might be taken to improve on the frequency and quality of oral argument in the intermediate federal courts of appeals. The formal report of the task force's efforts and analysis is attached to this article as Appendix I.

The report was prepared with the realizations that its statistical underpinnings were not perfect, that the frequency of argument varied widely within circuits, and that arriving at a consensus on how to address frequency and quality issues also could be the proverbial fool's errand. From the Academy's perspective, however, the report could at least provide a means to start a dialogue that would draw in stakeholders and provoke a serious discussion on the need to confront the consequences of the decline in oral arguments. The Academy likewise believed the report could be a useful framework for channeling the discussion towards achieving some positive results.

The Academy transmitted the report to the chief judges on each federal circuit with a proposal for in-person discussions on its contents. As noted, these discussions were intended to start a dialogue between the courts and advocates on the benefits of oral argument and ways to preserve and enhance its role in our system of appellate justice. Those discussions are largely complete and this paper captures some initial observations that follow from the Academy's efforts.

The ensuing commentary is broken into three basic parts: (1) an analysis of the Academy's task force report and its recommendations; (2) some high level discussion points that arose from the Academy's circuit meetings; and (3) some concluding thoughts about what might be done to preserve and enhance the role of oral argument going forward. …

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