Written and oral persuasion in the United States courts: a district judge's perspective on their history, function, and future.

• Author: Kravitz, Mark R.

The idea for this article developed several years ago as I was preparing to teach a course at the University of Melbourne Graduate School of Law, called "Effective Written Advocacy." The course coincided with a trend in Australian courts toward a more writing-focused appellate process, while Canada had embarked on a similar transformation of its appellate practice more than a decade before. I wanted to know why, relatively early in our history, courts in the United States had rejected the oral tradition of the English legal system--both in advocacy and judicial opinions. My curiosity also coincided with an experiment I had been conducting since my confirmation as a federal district judge, which is to hold oral argument on virtually every motion of any substance, something I am told is not the norm in federal courts across the country. I wanted to think more systematically about the differing functions served by written and oral persuasion and why I found oral argument so enormously valuable. Finally, I wanted to consider the future of oral argument in a court system that is focused so heavily on efficiency.

My purpose is to provoke discussion, not provide solutions. I am heavily in the debt of those who have considered these issues in much greater depth than I--none more so than Professor Suzanne Ehrenberg, the author of a wonderful article entitled Embracing the Writing-Centered Legal Process. (1)

1. HISTORY

   As we all know, the English legal tradition has long favored speech over writing. Until relatively recently, everything English judges learned about a case, they learned at oral argument. They also issued oral judgments and do so to this day, although now they more often deliver them after reserving decision rather than proceeding ex tempore--that is, immediately following the oral argument. That the English courts chose a speech-centered legal process should come as no surprise, as speech has been the favored method of communication throughout the history of Western culture. Oscar Wilde noted that the "Greeks ... regarded writing simply as a method of chronicling. Their test was always the spoken word." (2) And as Professor Ehrenberg reminds us, Plato has Socrates explain in the Phaedrus that the written word is incapable of expressing thoughts as precisely as the spoken word. As Socrates puts it, while written words may seem to "understand what they are saying ... if you ask them what they mean by anything they simply return the same answer over and over again." (3)

   At its inception, the United States borrowed much from the English legal system, relying heavily on Blackstone, Coke, and others to shape our legal culture. In fact, an order of the Supreme Court on August 8, 1791, advised that

   this court consider[s] the practice of the courts of king's bench, and of chancery, in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary. (4) However, early on, the courts of the new nation began to opt for a legal process in which writing played an increasingly critical role. Of course, we chose a written Constitution, with enumerated individual rights, and our courts also embraced a writing-focused legal process. This emphasis on writing appears to have begun with courts' own judgments. In fact, in 1784, the Connecticut legislature passed a law (the first in the nation) requiring all judges to "reduce to Writing" the reasons for their judgments. (5) Many other states followed suit, so that, as Professor Tiersma notes, "American judges at the close of the eighteenth century were already beginning to draft their opinions in writing." (6) And Professor Surrency, in his seminal History of American Law Publishing, reports that "[a]ll evidence suggests that written opinions became the accepted practice within the first decades of the Nineteenth Century." (7)

   The Supreme Court relied heavily upon oral opinions in its early years. However, the second reporter to the Supreme Court, William Cranch, suggested that by 1801 the justices had adopted the practice of writing out their opinions in cases of difficulty or importance. (8) Congress authorized the Supreme Court to appoint an official reporter of decisions in 1817, (9) and in 1834, the Court issued an order marking the end of the era of oral opinions: The order required that opinions be delivered to the reporter, who would in turn return them to the clerk of the court for filing after publication. (10) Even though the Supreme Court's opinions are written, the Court continues to this day to announce its opinions orally from the bench.

   The early American emphasis on written opinions stood in marked contrast to the English practice of the time. The English judicial tradition has been described as one of "comprehensive orality." (11) Indeed, Sir Edward Coke wrote that requiring judges to write out their opinions would require immense labor by judges and take them away from their duties. He wrote that their records would be "Elephantini libri" and would "lose somewhat of their present authority and reverence." (12) I wonder what he would think today.

   The emerging primacy of writing over speech in American courts was not limited to court judgments. We all learned in law school about the days-long orations by early Supreme Court advocates such as William Pinkney, William Wirt, and Daniel Webster. (13) Yet it is said that those lengthy set-piece arguments prompted Chief Justice Marshall to quip that the "acme of judicial distinction means the ability to look a lawyer straight in the eyes for two hours and not hear a damned word he says." (14) The emphasis on oratory in the Supreme Court nonetheless continued well into the nineteenth century. In 1821, the attorneys in Gibbons v. Ogden argued for six days. John Quincy Adams and Roger Baldwin argued for eight days in the Amistad case in 1841. (15) But by then pressure had already begun to build for a move away from such lengthy oratory and toward a writing-focused legal process in the Supreme Court.

   The first writing requirement in the Supreme Court was adopted in 1795; the Supreme Court's Rule 8 required attorneys to submit "a statement of material points of the case." (16) Then, in 1821, the Supreme Court rules made their first reference to the word "brief," requiring "a printed brief or abstract ... containing the substance of all the material pleadings, facts and documents ... and the points of law and facts intended to be presented. (17) As Chief Justice Rehnquist once explained, (18) these early "briefs" were quite brief indeed, totaling no more than six to ten pages in length. Still, it was a start, and was quite different from the practice prevailing before the King's Bench at that time.

   Because of the demands of travel in early nineteenth-century America, the Supreme Court in 1833 gave counsel the option of submitting their cases on the papers, ordering that "in all cases brought here on appeal, writ of error, or otherwise, the court will receive printed arguments, if the Counsel on either or both sides shall choose so to submit the same." (19) This innovation was prompted by the Court's desire to "accommodate Counsel, and save expense to parties." (20) The Supreme Court later clarified that such cases "shall stand on the same footing as if there were an appearance of counsel." (21)

   No doubt influenced by their burgeoning workload and the demands of riding circuit, the Justices imposed the first limits on oral argument in 1849, restricting each advocate to two hours of oral argument, absent special leave of the Court. (22) The same rule provided that counsel would not be permitted to present oral argument unless he first filed a printed abstract of points and authorities. The brief thus became an essential feature of Supreme Court practice because it allowed counsel to make up for lost argument time. Furthermore, in an important innovation that served to emphasize the primacy of written submissions, the new rule cautioned counsel that attorneys would be prohibited from referring to any book or case that was not referenced in the points and authorities. (23) The brief thus began to mark the metes and bounds of oral argument.

   In 1858, the Supreme Court limited oral argument even further by restricting the number of attorneys who could argue on each side to two; without leave of the Court, therefore, oral argument was restricted to a maximum of eight hours. (24) By 1871, about a year after Congress had enacted legislation to establish the office of the Solicitor General, the Supreme Court acted to cut argument even further--to a maximum of two hours per side regardless of the number of advocates. (25)

   With oral argument time shrinking and briefs becoming more important, the Supreme Court took steps in 1884 to dictate the content of the briefs submitted to it by adopting a new Rule 21. The new version required "a brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with ... references to ... the authorities relied upon." (26) The attorneys were thus required to relate their arguments to specific legal authorities or record citations. While shorter than their modern-day counterparts, these late nineteenth-century briefs are recognizable to today's practitioners. As Chief Justice Rehnquist put it, "[w]ith these new requirements, the modern brief was born." (27)

   The trajectory of developments in oral versus written persuasion that occurred in the Supreme Court was mirrored in, perhaps even led by, state appellate courts. (28) First, state courts required minimal written submissions, then they allowed written submissions in lieu of argument, and finally, they limited the length of oral argument in all cases. (29) For example, oral argument in the New York Court of Appeals was limited to two hours in 1850. By 1860, written submissions in that court are...