Martin chaired the appellate academy's task force and initiative on oral argument. Hoping to spark a discussion with the Judicial Conference of the United States, the judiciary's policymaking arm, he sent copies of the academy's report this summer to Chief Justice John Roberts Jr. and to the chief judges of the U.S. federal appeals courts.
The academy has become concerned about the decline in the number of cases, particularly in the federal courts, that are scheduled for oral argument and the shrinking time allotted for their argument. The task force examined oral argument practices in the federal circuits and conducted a statistical analysis to evaluate the frequency of arguments and the types of cases being argued.
Federal Rule of Civil Procedure 34(b) begins with "oral argument must be allowed in every case," subject to certain exceptions. But the task force's statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, October 19, 2017
Why are there so few oral arguments?
The National Law Journal is covering the story of the vanishing oral argument. It's not just trials that are going away, but appellate advocacy is dying as well. For example, the 11th Circuit hears oral argument in less than 20% of its cases. That's just AWFUL. From the NLJ:
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I lost an appeal on an issue my opponent never briefed. The decision was a PCA. It was clear to me at oral argument why I was going to lose.
The decision of the trial court was affirmed, per curium with no opinion. Now, if there had been no argument, we'd never have known why we lost. (Bad trial court judge did sloppy job.) The courts don't like to embarrass their brothers and sisters with the Tipsy Coachman, right for the wrong reason, analysis.
So, my point is that in a world of PCAs oral arguments can provide the only forum where litigants can find out why they lost.
Wow, you would think the NLJ would know the difference between the Rules of Civil and the Rules of Appellate Procedure!
Oral arguments are one of the last vehicles we have that still make lawyers feel like, well, lawyers. But from a perspective of judicial economy, they are most likely a waste of time. I have listened to countless oral arguments at the state appellate courts, federal circuit courts, and tapes of Supreme Court tete a tetes. They have become forums for judges to re-inforce their own views by cross examining the lawyers in front of them. Almost like a cat playing with a mouse. The Supremes seem to be engaging in a game to impress both their colleagues with their smarts and the lawyers before them with their preparation or to ask so called "gotcha" questions aimed at the academic community. Scalia was brilliant at this ploy. But do they influence decisions? Hardly ever.
I used to work for a federal appellate judge. If any case fit one of seven categories, he would ask for oral argument. One of those categories was: Is this a case of public importance? If yes, he'd ask for oral argument. His reason: It's important for the public to see the courts doing their job. I wish more judges would think the way he does.
The situation in the Eleventh is exacerbated by the caseload. While the concern about oral arguments is a valid one, how about the fact that almost all cases have at least one visiting judge and many have senior judges. What precisely are the rules of law that are developing in the Eleventh Circuit? How are we to know when sop few permanent judges are ruling on panels. I would give up more oral arguments if we could get the Eleventh expanded. I shudder when I see panelist from the Federal Court of Trade or whatever it is, and they appear a lot.
I don't see any need for oral arguments, and am often frustrated that you can't get a judge in state court to rule on something without wasting your time with a drive to downtown. Judges should rule on the papers. Oral arguments are, for the most part, the home of the lazy, unprepared, cowboy lawyer/judge. Lawyers should do their job, think the arguments through, and write a clear and complete filing. Then judges should follow suit by actually reading and ruling on the record before them.
It would be a huge burden to forsake oral argument in state court. Half the motions on a state court calendar are what I would call "babysitting." Motions to compel discovery, frivolous motions to dismiss, and then more of the same. Most of these are settled with agreed orders that take up very little of a judge's time. And another forty percent are the result of petty disputes between lawyers. Not having a motion calendar would force a judge to spend almost all day every day going through the entire court file to make a decision. These cases are fundamentally different from having oral argument on a case that has been fully briefed and whose issues a judge can comprehend without a lawyer standing and talking for ten minutes by repeating what is already in writing.
6:01 PM -- agree, but by "oral argument" the reference is to appellate oral argument. No one is suggesting getting rid of motion calendar in state court (though, honestly, a lot of what is presented there could easily and more efficiently be decided on the papers).
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