69 The Alabama Lawyer 123 (2008). "Request for Oral Argument Denied:" The Death of Oral Argument in Alabama's Appellate Courts.

AuthorBY J. MARK WHITE

The Alabama Lawyer

2008.

69 The Alabama Lawyer 123 (2008).

"Request for Oral Argument Denied:" The Death of Oral Argument in Alabama's Appellate Courts

"Request for Oral Argument Denied:" The Death of Oral Argument in Alabama's Appellate CourtsBY J. MARK WHITE If your work as a lawyer includes any type of appellate practice, ask yourself: When was the last time an Alabama appellate court granted your request for oral argument? A simple comparison of the total number of cases filed in the appellate courts with the number of cases in which the request for oral argument was granted reveals a significant gap. Ask your colleagues when they last argued before the appellate courts and the answer will reveal the same. I propose that the lack of oral argument in Alabama's appellate courts is denying our clients the full benefit of our judicial system, especially the appellate system.

During the last six years, an average of 2,100 cases were filed each term in the Supreme Court of Alabama.(fn1) However, during this same period, the average number of oral arguments were only 25 each year.(fn2) During this entire six-year period, the Alabama Court of Civil Appeals granted oral argument in only 12 cases, and there were two consecutive years where no oral argument was held.(fn3) Over the last seven years, the Alabama Court of Criminal Appeals has averaged only 22 oral arguments annually.(fn4) I strongly suspect that if death penalty cases were excluded, the average yearly number of cases in which the request for argument was granted in both the Alabama Supreme Court and the Court of Criminal Appeals would hover in the single digits.

When compared with appellate court activity in other jurisdictions, Alabama's numbers are drastically low. In 2006, appellate courts in both Louisiana and New Hampshire heard oral argument in 39 percent of the cases docketed for appeal.(fn5) The District of Columbia Court of Appeals heard oral argument in 31 percent of its cases.(fn6) Historically, approximately 98 percent of the cases before the Supreme Court of Kansas and approximately 60 percent of the cases before the Kansas Court of Appeals were allowed oral argument.(fn7) For the 2007 October term, the Supreme Court of the United States set aside 28 days for oral argument and as of December 31, 2007, has already scheduled oral argument in 50 cases.(fn8)

Considering the total number of appellate cases that were argued in Alabama over the last six years, an Alabama litigant might be more likely to be struck by lightning than to have appellate oral argument granted. The declining trend in oral argument suggests that the appellate courts of Alabama are abandoning, or have in fact already abandoned, the practice of oral argument. As lawyers in Alabama, we should be asking the appellate courts why oral argument has declined so significantly and how is this affecting Alabama's judicial system. In a state where our appellate judges(fn9) are selected by popular vote, Alabama citizens are entitled to the answers to these questions.

Justice William J. Brennan observed:

[O]ral argument is the absolutely indispensable ingredient of appellate advocacy . [O]ften my whole notion of what a case is about crystallizes at oral argument. This happens even though I read the briefs before oral argument . Often my idea of how a case shapes up is changed by oral argument . Oral argument with us is a Socratic dialogue between Justices and counsel.(fn10)

Justice Antonin Scalia asserts that he uses oral argument "[t]o give counsel his or her best shot at meeting my major difficulty with that side of the case. 'Here's what's preventing me from going along with you. If you can explain why that's wrong, you have me.'"(fn11) Oral argument allows judges to probe the depth of counsel's arguments and positions, to test counsel's conviction and belief in his own assertions, and to satisfy the judge's own intellectual curiosity.(fn12) Oral argument provides the opportunity for the appellate judges to listen to the questions posed by their colleagues and gain insight as to how their brethren on the bench are thinking.(fn13) The mere preparation for oral argument can stimulate the members of the bench to fully explore the theoretical and practical consequences of a case's outcome. Conscientious preparation can instill a greater appreciation of the issues involved and the interests at stake. Scholars suggest that some appellate court members use information tactically minded during oral arguments to build consensus for majority opinions.(fn14)

Oral argument is also an opportunity for counsel to defend her theory of the case and engage the bench in a conversation about key legal and factual issues. Perhaps most importantly for the practitioner, recent studies have shown that a good oral argument can significantly increase the chances of winning on appeal.(fn15) As Judge Joel Dubina of the Eleventh Circuit Court of Appeals has noted, "I have seen cases where good oral argument compensated for a poor brief and saved the day for that litigant. I have also seen effective oral argument preserve the winning of a deserving case."(fn16)

As the third governmental branch of American democracy, the judiciary has a tremendous affect on the populace. But its role, while highly publicized, is arguably the least public. Oral arguments, which in Alabama are open to the public, are virtually the only time when a citizen can come into contact with an appellate judge while that judge is doing her job. "The Court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction."(fn17) The importance of appellate oral argument cannot be overestimated in its role of conveying a semblance of visibility and accountability(fn18) to an institution that can otherwise be perceived as closed to the very people who elect the members of its bodies.(fn19) Oral argument can and does provide and preserve the appearance of justice.(fn20)

Consistent denial of oral argument...

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