Sua Sponte

• Author: Hon. Joseph A. Greenaway Jr.
• Pages: 42-43

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

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Those opportunities at best are diminishing and more often

are just extinct. Those historical skills of being a lawyer—a sono-

rous voice and a calm demeanor when your insides are screaming

“HELP” and you are fighting the desire to run from the court-

room—are needless talents these days. You just hide behind your

computer and your written brief in the safe and secure confines

of your office or home, where you can reflect on each argument

with the luxury of time.

Moreover, if you are the responding party, without oral

argument you have no hope of the so important “last word.”

You get your opposition brief, but that is it. Your opponent

gets to leave the last impression. Yes, oral argument is often

constructed that way, especially on the appellate level; but in

the relative rough-and-tumble of the trial court, either advo-

cate can interject that final thought. In the old days of oral

argument, trial courts welcomed the back-and-forth and back-

and-forth. That way, each side is fully aired. Each position is

fully explored. The decision is based on the entire scope of the

issue, not the artificial territorial limit of opening, opposition,

and reply. In briefs, the reply brief can often frame the result.

Good luck getting leave for a sur-reply.

One reason for the disappearing oral argument is the ever-

growing dockets. Deciding a case on the papers takes less judi-

cial time than oral argument. You just have to read the papers

and weigh them. But oral argument takes as much of the judge’s

time as the lawyer’s. The judge has to not only read the briefs

but be able to discuss them and ask cogent questions on the

cited cases and even the uncited authorities. It multiplies the

demands on judges manyfold, demands that cannot be fobbed

off on law clerks. Perhaps, with the overwhelming crush of in-

creased caseloads, judges find eliminating oral argument one

of the few ways to control their calendar and the demands on

their time. The cost is tremendous on the parties and the system.

Judges often complain that lawyers’ oral argument only ends

up being a boring oral reading of what is already in the written

briefs and adds nothing to the deliberation. Judges also report

that too many lawyers are inept, come to court ill prepared, and

have not read their own briefs, much less the cases cited in them

or in their opposition’s papers.

The latter failure requires greater discipline in admitting

lawyers to the bar. But the former problem is due in part to the

judges themselves.

As lawyers, we put our best stuff in our brief. It may be the only

shot we have. First impressions are important. We carefully draft

our written argument. In oral argument, unless we are respond-

ing to the reply brief (if we are the opposing party) or to a judge’s

question, we really don’t have much to add. So we repeat what

is already in the written brief because that is the best we have.

The author is a judge on the U.S. Court of Appeals for the Third Circuit and

an associate editor of Litigation.

SUA SPONTE

A Judge Comments

HON. JOSEPH A. GREENAWAY JR.

Many lawyers and judges lament the vanishing oral argument.

Where is that opportunity to do what we all dreamt of in law

school—making the perfect argument that snatches victory from

the jaws of defeat? Prevailing when the cause is hopeless? Then

why is this most cherished of experiences going the way of the

dinosaur? I have some thoughts.

Who has the onus to compel the scheduling of oral argu-

ment? It is not the court. Lawyers complain that courts choose

to rely on the briefs to resolve disputes because it is easier. I

choose to look at the briefs as an opportunity, often lost, for

the advocate to compel oral argument. Courts need to husband

their resources. All would agree with that proposition. Oral

argument cannot be held in all cases. True, some judges need

not be coaxed if the subject matter is of particular interest, but

that circumstance is rare. The advocates must force the hands

of the court. It is the waning skill of wordsmithing that is most

responsible for the disappearance of oral arguments.

When I pick up a brief, I do not expect to be wowed. I do expect

that the advocate will take every chance to persuade. The intro-

duction, the facts, the summary of the argument, and the meat

of the case—the argument section itself—are each ripe with op-

portunities to pique the interest of my colleagues and me to order

oral argument. How do you—to use a current colloquial phrase of

my clerks—make it pop!?! How do you make the prospect of oral

argument seem intriguing? This is the skill that is lacking. My col-

leagues and I long for those cases that are not obvious, where there

is conflicting precedent or the lack of clarity. It is not up to us to

convince ourselves that your case fills that longing. It is up to you.

Potential Reasons for Decline

Some say that the reason for the dearth of oral arguments is

twofold: Judges are lazy, and they choose not to engage. Judges

are concerned about statistics and find it is easier to produce

dispositions without the interjection of oral argument. The

judges believe it’s all in the briefs, so why waste the time when

I have thought about it and made up my mind?