The decline of oral argument in the Federal Courts of Appeals: a modest proposal for reform.

• Author: Cleveland, David R.

1. INTRODUCTION

   Federal appellate practice is not what is used to be. In the 1970s, oral argument was routinely granted and it was generously sized at thirty minutes per side. After a period of dramatic shrinkage in both frequency and length in the 1980s (1) and 1990s, the role of oral argument has been greatly diminished. It is now the exception rather than the rule. In 2011, only one quarter of all federal appeals were orally argued, (2) down from nearly two-thirds in the early 1980S, (3) and the time allotted in most circuits was limited to fifteen minutes or less.

   The drastic reduction in the frequency of oral argument and its length has been driven largely by considerations of efficiency as reflected in the universal adoption of case-screening methods that shunt aside the majority of cases to a summary or non-argument calendar. (4) This separate decisional track involves "a significantly lesser degree of personal attention by judges" (5) by placing "primary reliance for the operation of the screening process on a centrally-organized, parajudicially-supervised group of staff attorneys." (6)

   The federal rule on this issue acknowledges the importance of oral argument, but in practice permits it to be both brief and rare. (7) Procedural efficiency comes with a cost, (8) of course, and the extraordinary reduction in oral argument has diminished its role. (9) The decline of oral argument has been one casualty of the procedural reforms made in response to the crisis of caseload volumes that began in the 1980s. (10) Reduction in oral argument has been described as a response to pressure, taken almost against the courts' own will. (11)

   The result is a more efficient but more paper-driven bureaucratic process of appellate decisionmaking. There is less input from the lawyers. The values implicit in appellate review are weakened or diluted. (12) Moreover, there is a disturbing appearance of correlation between the decline in frequency of oral argument and the decline in reversal rates in both civil and criminal cases. For example, Judge John Godbold cited data in 1994 showing a decline of one half in the overall federal appellate reversal rate from 1982 to 1993, from 19.9 percent to 10.3 percent, with a significant decline in every category of appeal. (13) By 2011, the reversal rate had fallen further, to 8.9 percent overall and 5.8 percent in criminal cases. (14)

   Could the decline in reversal rates and the decline in frequency of oral argument be coincidental? They could. Or one might say that better screening procedures have increased the accuracy of appellate decision making to a more "correct" reversal rate than the historic figures. But one might also reasonably suspect that the very same process that shunts the vast majority of cases to the summary calendar is responsible for an institutional readiness to dispose of the cases by affirming the decisions below. Thus, the authors fear, though they are not the first to do so, that "[w]e have lowered our expectations for appellate procedure. We have defined down our appellate values. We all have internalized the postmodern norms of the minimalist procedural paradigm." (15)

   Oral argument is too central to the appellate process and too valuable to sacrifice on the altar of efficiency. We propose a return to a greater role for oral advocacy. (16) Part I of this article briefly outlines the importance of oral presentation in Western culture, modern communication, and traditional common law argument. Part II collects the federal rule of appellate procedure and corresponding local rules and internal operating procedures that govern the grant, or more often the denial, of oral argument. Part III examines the numerous and varied values of appellate justice that are served by oral argument. Part IV demonstrates the dramatic decline of oral argument since 1970. Finally, the authors propose modest reforms for restoring a greater role for oral argument in the federal courts of appeals.

2. HISTORICAL VALUE OF ORAL DISCOURSE AND ARGUMENT

   The power of oral argument was known to the ancient philosophers. "One of the persistent themes of Western thought since Plato is that speech is a superior form of communication to writing." (17)" " The Greeks "regarded writing simply as a method of chronicling. Their test was always the spoken word. Plato, for example, recounts a dialogue between Socrates and Phaedrus expressing the necessity and humanity of oral dialogue and its superiority to writing. (19) As Socrates explains, true knowledge and understanding is hampered by fixing one's thoughts into a writing, which fosters misunderstanding and cannot be questioned further because a writing "produce[s] the same unvarying meaning, over and over again." (20) Communication must be tailored to the speaker and the listener, he argues, and sown not in ink but in the soul. (21)

   Socrates urged Phaedrus to tell the speechwriters, including the law-makers,

   that if their compositions are based on knowledge of the truth, and they can defend or prove them, when they are put to the test, by spoken arguments, which leave their writings poor in comparison of them, then they are to be called, not only poets, orators, legislators, but are worthy of a higher name, befitting the serious pursuit of their life. (22) These notions of the humanity, gravity, and interactivity of oral discourse are important in pursuing appellate justice.

   An early communications scholar of the modern era, Harold Innis, argued that a balance of oral and written communications promoted the intellectual greatness of ancient Greece. (23) Plato's preservation, in writing, of the dialogues of Socrates, which were oral, captured the strengths of both forms of communication. Professor Innis favored this "use of dialogues, allegories and illustrations" to capture the benefits of spoken language and interaction and fix it for future readers. (24)

   Modern American legal practice, particularly at the appellate level, has tilted heavily toward written communication and away from oral communication. Advocates present in writing rather than engaging and connecting in person. Chief Justice Rehnquist once recounted a tale of a New York appellate judge who chastised an attomey for reading from his brief in violation of a court rule prohibiting argument in that form. (25) The judge explained the court rule and reasoned that the court had read the brief. (26) Counsel in his own defense proclaimed, "Yes, but you have not heard it with gestures." (27) The point of the story is that there is an important dimension to communication beyond word choice. The power and value of an oral presentation is its potential to engage the decisionmakers. As Chief Justice Rehnquist put it, "the more flesh and blood you can insert into it, as opposed to a dry recitation of principles of law or decided cases, the more interesting and effective that argument can be." (28) What the Chief Justice's comments speak to is the visceral, engaging, and human nature of oral discourse, attributes that are stripped from our justice system in what is, for the vast majority of cases, a desiccated text-only process.

   Appeals in the English courts have been largely conducted through oral presentation and argument since the early days of the common law. (29) The same is true in most other common law countries. (30) Professor Ehrenberg has extensively examined the divergence between the English and American systems on the issue of oral argument. As she summarizes, "[o]ral advocacy is the heart of the English legal system." (31) Another extensive study of the English and American appellate processes concluded that "[t]he heart of the English legal system and upon which all major aspects of it are based is the oral tradition." (32)

   Traditionally, English barristers did not file lengthy written submissions to the court but orally educated the court on the facts, law, and argument over the course of hours. (33) In many cases, even the judges' deliberations would be made in open court. (34) Though comparatively time-consuming for judges (though not necessarily for lawyers, who under the system in the United States would devote far more time to the writing of appellate briefs), the system has several benefits. First, it brings the entire process of argument and decisionmaking into public view. It puts the decisionmakers, advocates, and individuals whose lives are affected together in the same room for an extended period of time, emphasizing the gravity and humanity of the task. Second, it makes the entire enterprise interactive, allowing the judges and lawyers to engage in a manner that addresses one another's concerns and to probe the areas of ambiguity in the case. The lawyer gains greater assurance that his points are understood, even if they are ultimately rejected, and the court is better able to interrogate the counsel regarding issues that might be obscured in the written briefing. Oral argument enhances understanding. To dispense with it is a loss like teaching a law school class by reading judicial opinions aloud without discussion or question and answer.

   Appellate practice in England was an overwhelmingly oral one from the early common law until the mid-twentieth century. (35) Few written records were produced at trial, typically just the court's record of the pleading and the court's summary of its judgment, and submission of the case on appeal was an oral--not written--process. (36) Litigants aggrieved by a trial court judgment would argue their case, informing the court of the defects in the trial court's judgment and receiving an oral judgment from the court. (37) Every aspect of the case, even the written record from the trial court, was presented orally by the advocates rather than reviewed in chambers by judges before the hearing. (38) Oral argument was less in the manner of modern American argumentation and more of "a continuing discussion of the relevant facts and...