DIFFERING SCHOOLS OF THOUGHT: CHANGING PERCEPTIONS OF ORAL ARGUMENT.

• Author: Levine, Spencer D.

INTRODUCTION

In the past few years, two events occurred that brought the process of oral argument into the news. On February 13, 2016, Justice Antonin Scalia died after having served on the United States Supreme Court for nearly thirty years. A hallmark of his time on the Court was his relentless and sharp questioning of the counsel that appeared before the Court. Before the ascension of Justice Scalia, many could argue that oral argument could be characterized as being a more genteel affair. With Justice Scalia setting the standard, others like Justices Sotomayor, Ginsburg, and Breyer have joined the fray to the point that the number of questions posed by the Justices increased significantly in recent times. (1)

The other event occurred on February 29, 2016, when Justice Clarence Thomas asked a number of questions at oral argument after over ten years of silence. (2) New York Times reporter Adam Liptak speculated that Justice Thomas's questions could have been prompted by Justice Scalia's death acting as "a sort of passing of the baton." (3) Through the years, Justice Thomas's silence had become a news story in and of itself. Thomas was quoted as lamenting the atmosphere of questioning that made the court "look like 'Family Feud.'" (4) Thomas said regarding oral argument, "[i]f I invite you to argue your case, I should at least listen to you...." (5) Although not as a prominent figure in this debate. Justice Alito also stated that "oral arguments aren't all that important, despite a popular belief to the contrary." (6)

The media and, understandably, the legal profession have become fascinated with the institution of oral argument. Whether it is the diametrically opposed views of oral argument as represented by the late Justice Scalia or those of Justice Thomas, now everyone seems to have an opinion on the merits of oral argument. (7) Typically, the opinions on the merits of oral argument have been examined through our experience with the United States Supreme Court.

Oral argument can be shorter or longer in duration, it can be engaging and perceived as being "hot," or it can be more routine and perceived as "cold." Requests for oral argument can be routinely granted when requested, or they can be screened vigorously by the judges to determine whether the request for oral argument should be granted. As a result, oral argument is often perceived as being a worthwhile activity, or conversely, as being of limited value. One thing is clear, that the decision to request or not request oral argument by the parties, or the decision to grant or deny the request for oral argument by the appellate panel, can become a very important decision during the pendency of the appeal. The decision to grant or deny oral argument is often the first substantive decision of the merits panel. Thus, a seminal question is how much significance appellate judges put into oral argument.

In this paper I will examine the changing perceptions of oral argument, as well as examine and review the data provided by the Office of State Courts Administrator ("OSCA") for Florida's appellate courts. Their data summarized the dispositions of all appeals in Florida from 2011 to 2015. The dispositions are separated between those cases disposed by oral argument and those cases disposed without oral argument. From this research, we can observe whether this data comports with the changing perceptions of oral argument.

If there is a divergence in views, one may attempt to determine why. Is it rooted in the age old views as represented by Justice Thomas and the late Justice Scalia? Are some judges just perceiving it as a waste of time and a drain on the scarce resource of time, as opposed to the traditional view of oral argument as the ultimate legal proving ground? Finally, why should we care about the changing perceptions of oral argument? It matters to judges and practitioners because they need to know if the perceptions confirm or contradict their own perceptions of oral argument.

1. SCHOOLS OF THOUGHT

   Through the years, there have been varying opinions on the value of oral argument. Often the scholarship was directly from the practitioner or the appellate judge. The perceptions can be divided into three categories: (1) Oral argument is a grand part of the appellate practice, which is a tradition that should be preserved and almost always utilized; (2) oral argument is generally valuable only for "close cases"; and (3) oral argument is generally considered a vestige from a distant past, since today we rely almost exclusively on the written briefs, and oral argument is a drain on the appellate judge's valuable time. Commentators often do not fit squarely in one camp and drift from one camp to another.

2. THE TRADITIONALIST VIEW OF ORAL ARGUMENT

   The traditionalist view of oral argument advocates the virtue of oral argument as an institution. Oral argument can be valuable by having the parties respond to probing questions which in turn sharpen the answers from the parties, and as a result, narrow the issues to be resolved by the court. It serves as a method to bring the wide-ranging arguments to a more focused discussion, with the natural boundaries set by the inquiry and by the time set to discuss the pending issues. It serves as an opportunity for the parties to talk to the court, and through the questions and answers between the panel and the parties, as a way for the parties, often, to indirectly talk to each other. In order to determine if the value of oral argument is real, one has to consider the following questions: is the value of oral argument "real," as highlighted by the traditionalists, in the sense that oral argument either changes minds or demonstrably sharpens the issues discussed? And if the answer is yes, can one realistically see that result in oral arguments that can be as short as ten minutes per side? To some commentators, "to understand the prevailing attitudes about oral argument and its importance to the appellate process, it is necessary to be familiar with the origins of oral proceedings in the legal process in England" and there is a reoccurring urge to return to the "English oral tradition." (8)

   The English appellate courts proceedings "were almost exclusively oral and often continued for many hours." (9) "The essential fact is that English appellate proceedings were and are today entirely oral" and this is critical to understand the profound impact oral arguments have had on the American legal system. (10) Although the English tradition remains exclusively oral, through our history there has been a lessening of the importance of oral argument over the years. Starting with 1849, the United States Supreme Court limited each side to two hours of oral argument, and then cut the time of oral argument in 1858, 1870, and 1911. (11) Finally, the thirty minute, one attorney per side limit was set in 1984. (12)

   In state courts, like Florida, the appellate rule states that "[c]ach side will be allowed 20 minutes for oral argument, except in capital cases in which each side will be allowed 30 minutes. On its own motion or that of a party, the court may require, limit, expand, or dispense with oral argument." (13) In the federal courts, the appellate rule states that all the parties will be advised of "the time allowed for each side" during the oral argument. (14) For example, in the Eleventh Circuit local rules, the "oral argument calendar will show the time the court has allotted for each argument." (15) The advisory committee notes for the federal rules point to the fact that the "majority of circuits now limit oral argument to thirty minutes for each side, with the provision that additional time may be made available upon request." (16)

   Those representing another view, the traditional view of oral argument, often harken back to the pre-1849 years of the Supreme Court to its value. They cite to the free-wheeling days of oral argument to wistfully point out the value of oral argument. Justice Rehnquist asked the reader "to travel back with me in time... to the Capitol Building.... It is February 4, 1824, and [the] argument is about to commence in Gibbons v. Ogden.... Five full Court days-four hours each day- were devoted to the argument of this...