The Disappearing Oral Argument

• Author: Mark A. Neubauer
• Pages: 40-43

Published in Litigation, Volume 48, Number 2, Winter 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 40

The Disappearing

Oral Argument

MARK A. NEUBAUER

The author is a shareholder in the Los Angeles office of Carlton Fields LLP, and a senior editor of Litigation.

Once upon a time, there were no briefs filed on motions or ap-

peals, only oral argument. Today, all too often, there is no oral

argument for motions or appeals, only written briefs.

Increasingly, courts are dispensing with oral argument, prefer-

ring the nonconfrontational determination of legal victory based

just on written submissions. Oral argument, which requires the

great skill that epitomizes being a lawyer, is being lost, going the

way of the typewriter and the telephone landline.

Why? The decline of oral argument is the fault of both law-

yers and courts.

The cost? A denial of justice and due process. True adminis-

tration of justice comes from the verbal interchange between the

lawyer/advocate and the judge/decider. Instead, when a court

makes determinations on just the written word alone, the risk is

the lawyer may not have adequately explained his or her position

in the brief or the judge may not have understood the position

in his or her reading of it.

Oral argument allows those miscommunications to be

corrected.

Scriveners, Not Trial Lawyers

With the growing scarcity of oral argument, and indeed trials,

a new generation of litigators is maturing without ever having

entered a courtroom. Just a crew of scriveners. Good scriveners

to be sure, but not true trial lawyers.

In the old English courts, barristers never submitted a written

brief, relying instead on their oral skills. Not until 1843 did the

U.S. Supreme Court allow briefs to be presented in lieu of oral

argument. By 1849, the Supreme Court “limited” oral argument

to just two hours, forcing written briefs as a necessity.

By the 1970s and 1980s, with a dramatic increase in lawsuit fil-

ings, courts turned increasingly to relying solely on briefs because

of their heavy caseload. By limiting themselves to briefs, courts

were able to avoid the hours of preparation for oral argument

when they needed to know the case as well as the advocate so

the judges could ask percipient questions. The trend away from

oral argument has progressed. A decade ago, in 2011, decisions

based on oral argument in the 11th Circuit had declined to just

16 percent of the cases.

The trend is even worse today. In the last tabulation in

September 2020, in all of the federal circuits, only 19.3 percent

of the cases decided had oral argument. Just 5,817 cases of the

total of 32,796 cases decided on the merits actually had an oral

argument. The Seventh Circuit had the highest percentage of oral

argument, 37.2 percent; the lowest was the Fourth Circuit, decid-

ing cases with oral argument just 8.1 percent of the time, with the

remaining 91.9 percent of the cases in that circuit decided only