WITHER ORAL ARGUMENT? THE AMERICAN ACADEMY OF APPELLATE LAWYERS SAYS LET'S RESURRECT IT!

• Author: Martin, James C.

Oral argument is one of the most written-about, discussed, and debated aspects of the appellate process. Among lawyers, judges, and legal commentators there are disparate views on its value. Some contend oral argument occupies attention and time that is disproportionate to its value to the decision-making process. This viewpoint is often driven by observations that briefs are far more important to shaping the ultimate decision and that oral argument only rarely changes the outcome.

The American Academy of Appellate Lawyers, a nationwide group of experienced appellate advocates, has, for many years, analyzed issues related to oral argument among its membership and with judges and academics. The Academy puts great value on oral argument, particularly from a systemic perspective. Oral argument is, after all, the only time where a party and its advocate can interact with the decision-maker. It is a time when the court's views on the issues are on display for the public and for clients, and counsel has the opportunity to address potential misconceptions or overlooked facts. In that manner, oral argument is the most tangible manifestation of the critical role that appellate courts play in the resolution of public and private disputes traversing our legal system.

Because of its strongly held beliefs, the Academy became concerned about the apparent and verifiable decline in the number of cases, particularly in the federal system, that are listed for oral argument, as well as the shrinking time allotted to those cases listed. These discussions started anecdotally. But eventually they resulted in the Academy's undertaking an initiative to see if steps could be taken to help increase the frequency and usefulness of oral arguments or, at the very least, re-invigorate the appellate courts concerning oral argument's intrinsic and extrinsic value.

The process began with a task force that looked closely at oral argument practices in the various federal circuits. In tandem with that effort, a statistical analysis was undertaken to try to make a meaningful evaluation of the frequency of arguments in the various circuits and develop some appreciation for the types of cases being argued. After gathering this foundational information, the task force, with input and insights gained from the Academy's membership, produced a report outlining the Academy's views on steps that might be taken to improve on the frequency and quality of oral argument in the intermediate federal courts of appeals. The formal report of the task force's efforts and analysis is attached to this article as Appendix I.

The report was prepared with the realizations that its statistical underpinnings were not perfect, that the frequency of argument varied widely within circuits, and that arriving at a consensus on how to address frequency and quality issues also could be the proverbial fool's errand. From the Academy's perspective, however, the report could at least provide a means to start a dialogue that would draw in stakeholders and provoke a serious discussion on the need to confront the consequences of the decline in oral arguments. The Academy likewise believed the report could be a useful framework for channeling the discussion towards achieving some positive results.

The Academy transmitted the report to the chief judges on each federal circuit with a proposal for in-person discussions on its contents. As noted, these discussions were intended to start a dialogue between the courts and advocates on the benefits of oral argument and ways to preserve and enhance its role in our system of appellate justice. Those discussions are largely complete and this paper captures some initial observations that follow from the Academy's efforts.

The ensuing commentary is broken into three basic parts: (1) an analysis of the Academy's task force report and its recommendations; (2) some high level discussion points that arose from the Academy's circuit meetings; and (3) some concluding thoughts about what might be done to preserve and enhance the role of oral argument going forward.

1. THE TASK FORCE REPORT

   From the Academy's perspective, the benefits of oral argument are profound. Among other things, it: (i) improves the accuracy and quality of appellate decisions and the decisionmaking process itself; (ii) provides the parties with a public manifestation that they have had their day in court; (iii) performs a critical civics function showing appellate courts' role in upholding the rule of law; and (iv) teaches lawyers how appellate judges decide cases.

   Given these benefits, the statistical information the task force analyzed and evaluated was troubling. The Academy extracted classes of cases in which oral argument is unlikely to be helpful, e.g., cases with self-represented parties. In the remaining cases--those where argument might be appropriate--the percentage argued is below 50 percent in the majority of circuits, hovers at 50 percent in a few, and exceeds 50 percent in only two.

   Measured against the language of Federal Rule of Civil Procedure 34(b), which starts with the proviso that "oral argument must be allowed in every case" subject to exceptions, one might expect oral argument to be the rule. When the statistics are considered, however, it is the exception, leading to the conclusion that oral argument in many circuits "will not be allowed" unless the court believes it will be helpful. The Academy believes this institutionalized rebuttable presumption against argument needs to change. Nor does change seem insurmountable. Two circuits, the D.C. Circuit and the Seventh Circuit, hold argument in a significant number of cases and appear to treat oral argument as the norm. If the remaining circuits reached numbers in the 60 to 70 percent range, the systemic effect would be enormous, and Rule 34's argument allowance proviso would become a reality.

   To get the discussions moving, the Academy's report offered some specific recommendations for the courts to consider. To that end, the report posited:

   * Establishing pro bono or other programs that would provide opportunities for oral argument in pro se cases;

   * Putting more stock in the parties' requests for oral argument and having these requests be made after briefing and focus on specific issues;

   * Issuing more focus letters where the court gives advance notice to counsel on the issues it is concerned about;

   * Developing a question and answer approach that directly gets counsel to the issues the court cares about that are likely to impact a resolution;

   * Making greater use of technology to enhance outreach and account for geographic challenges; and

   * Creating training programs for advocates that focus on how to deliver work product, written and oral, that is useful for appellate courts.

   The Academy viewed these as modest but achievable steps. These recommendations then formed the backdrop for the initiative's next phase: direct discussions with the courts.

2. THE ORAL ARGUMENT INITIATIVE

   The Academy recognized that simply making a handful of abstract recommendations in a report would not be impactful. Rather, any serious attempt to increase the frequency of oral arguments needed to involve direct discussions with the courts. Those discussions would provide a means to identify, probe and try to address why arguments are not held more frequently. So, following its publication, the Academy circulated its report, by letter from its president, to each circuit judge in the federal intermediate courts of appeals. A copy of that letter is attached as Appendix II. Academy Fellows and appellate practitioners, who practiced frequently in the respective circuits, followed up. In the end, discussions were held with eight circuits, including the Federal Circuit. The results of the discussions were reported to the task force by the Fellows who attended and some generalized observations on these face-to-face discussions follow.

   First, for those circuits where the percentage of arguments is low, the reasons given vary, but several recur. Among the most frequently cited are: (i) workload--oral argument takes time and it makes it more difficult to decide cases in a timely manner; (ii) lack of value--oral argument is unnecessary where the law is settled or no new or novel issues are presented; (iii) cost to the parties--oral argument is a significant expense particularly in those circuits that are larger geographically; (iv) lawyers are not requesting it--oral argument frequently is not requested in criminal and immigration cases; and (v) the unlikeliness that it will change the court's views--oral argument is not needed because briefing gives the court what it needs to decide a case.

   Second, a loose consensus also emerged on why or how oral argument is an important part of the decision-making process. These included: (i) help in the court's reasoning process--oral argument can help refine perspectives on the result reached; (ii) performing an external systemic function--oral argument represents an important legitimizing factor in the role of the judiciary; (iii) some cases need to be heard--oral argument must be held in high profile or significant cases to meet private and public expectations; (iv) improvement in briefing--oral argument provides a way for courts to hold lawyers accountable; and (v) educational function--oral argument enables the judges to learn more about the cases they have to decide.

   Third, three of the Academy's specific proposals elicited a consensus endorsement. The discussions revealed that: (i) focus letters sent pre-argument help make oral argument more beneficial; (ii) pro bono programs work and providing argument opportunities in those cases has value; and (iii) mooting and video training makes sense and improves the quality of advocacy.

   Fourth, and perhaps not surprising, there was widespread agreement that a well-presented argument enhances the decision-making process. From the courts'...