The oral judgment practice in the Canadian appellate courts.

• Author: Cote, J.E.

1. INTRODUCTION

   It is traditional that British and Canadian appeal courts render many judgments orally, in open court. Although this format may seem foreign to American judges and jurists, it is a practical and efficient tool for rendering decisions and disposing of cases. The American legal system would fare well to consider the advantages of oral judgments.

2. HISTORY

   Oral judgments are not foreign to the American legal system. They are the traditional common-law way to render judgment. Virtually all of the English court decisions commonly referred to in law school are reports of oral judgments. (1) Many are not even verbatim reports. (2) Until recent years, most English reasons for judgment, even long important ones, were delivered orally in court. (3) Although some were drafted in writing first, many were extempore. (4)

   Early American law reports contain oral appellate judgments. (5) In its early years, the Supreme Court of the United States received only oral argument without written briefs, and it appears to have given oral judgments. (6) Eventually, however, American appeal courts began to offer more and more written judgments, until oral judgments became almost extinct. Isolated modern attempts to reintroduce oral judgments into a few American appellate courts have not taken root. (7) But the glories of American appellate practice are adaptability, experimentation, pragmatism, and constant improvement. With such an open-minded approach, the American legal system might consider breathing new life into the practice of oral judgments, which serves not simply as an exotic toy, but as a useful tool.

3. THE SUCCESS OF ORAL JUDGMENTS

   British and Canadian appeal courts achieve four basic goals with oral judgments: timeliness, clarity, efficiency, and fine-tuning.

   1. Timeliness

      With oral judgments, the parties get an instant answer to their appeal. This eliminates any delay at the critical stage of the appeal, when the lawyers and clients are most dependent on the court for timely and responsive conclusions. This is particularly important in urgent matters. If the court affords instant judgment in matters of high profile, the public and the media are apt to view the court in a positive light.

   2. Clarity

      In the appeal process, the most critical time to avoid delay is the interval between argument and judgment. (8) This is especially so when some of the judges live in other cities. (9) Oral judgments allow judges to give their reasons while their memories are fresh and uncontaminated. Courts usually hear argument on several appeals, then wait until the end of the morning (or even later) to confer. But the passage of time can make a judge forget the nuances of competing issues or make her unsure whether factual details come from another similar case argued the same day. Often the difficult decision is not whether to affirm or reverse a decision; it is what ground to choose. Delaying the judgment may cause the judge's memory of details on which a judgment is based to become vague or even inaccurate. In turn, this would require the judge to recheck court documents or get a detailed draft from a law clerk or staff lawyer. Oral judgments avoid this time-consuming process by affording accuracy and clarity.

   3. Efficiency

      Oral judgments are efficient in two respects. First, oral judgments leave the judges no further work to do. There is nothing more to draft, circulate, check, or proofread. No one has to refresh his or her memory of anything. No judge or clerk needs to segregate or send papers to any judge's office or home city.

      Second, the judge can save oral argument time before judgment. By employing oral judgments, a court that is not persuaded by the appellant may opt not to hear any oral argument from the appellee. (Of course, the court has already read the appellee's brief.) The court may retire briefly after the appellant's oral argument. It then may reconvene, tell the appellee's counsel that he or she need not argue, and at once give brief oral reasons affirming the trial judgment. This practice is very common in British or Canadian courts, where most appeals end in this manner. (10)

      Conversely, the briefs may make the appeal sound persuasive. Then the court may begin oral argument by calling on...