Friday, May 11, 2012

Oral Argument on Appeal -- A Total Waste of Time?


I love the letters page of the Florida Bar News -- it's the only part of the paper where there is an actual voice or opinion being expressed amid the robo-copy of endless announcements, seminars, and proposed rule changes.

In the current issue local appellate attorney Albert W. Guffanti basically says oral arguments are a "charade":
 As regards oral argument, it is my belief that most appellate panels have made their decisions prior to oral argument, reducing oral argument to a charade. Indeed, if the panel has read the briefs and researched the law (i.e., at least reviewed the law clerks’ assessments), there should be no argument, for nothing at the appellate level can change the facts of the case. Similarly, seldom does the applicable case law change just prior to oral argument, in which case a motion to supplement may be filed.

The better practice would have the appellate court request counsel to provide additional development of a particular issue, or brief an issue not presented but of interest to the panel. The court would then receive better-researched, more thoughtful and even, perhaps, enlightened responses, something which is usually impossible at oral argument.
He also laments the increasing reliance on PCAs: 
Also applicable here is the issue of proper use of judicial resources. If the argument that there are too many cases for appeals courts to handle adequately has any validity, then an “adequate” use of resources would result in dispensing with oral argument almost altogether, and spending that time writing opinions, instead of issuing PCAs in over 60 percent of the cases.
Our society, litigants, and our judicial system would be better served by the writing of real opinions, no matter how brief, but citing at least one authority for every issue presented.
I agree with him on PCAs -- the parties deserve an explanation of the ruling, however minimal, and bedrock common law principles of "precedent" and "stare decisis" demand that we provide reasons for our decisions so that those reasons can be applied to future cases.

On oral argument I'm not so sure, what do you think?

You always like to believe your brilliant oratory and silver tongue swayed a judge's mind, but is that more vanity than reality?

4 comments:

  1. The purpose of Oral Argument is to give the judges an opportunity to discuss with counsel specific points that need elaboration or clarification. They are neither a sham nor a waste of time. Yes most cases are decided without oral argument, but anyone who gives up the opportunity to discuss with a judge the finer points of the case, or answer their questions - in person - is doing their client a disservice.

    We put on more than 50 litigation boot camps in four states and we have judges - appellate, trial, supreme court, federal circuit, etc. at almost every one. And every single judge has said only a fool would waive oral argument (maybe not in exactly those words). That's more than 60 judges across the country, state and federal, trial and appellate.

    I think as a litigator, I'm more inclined to listen to a whole lot of judges than one embittered practitioner.

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  2. I agree 100% with the that oral argument should be eliminated at the appellate level. But until that happens, use it.

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  3. oral argument = judges' chance to play God.

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  4. Look, you write a brief, the other side writes back. In the answer they say, "the error was not preserved. The Plaintiff failed to object."

    The court renders a PCA. Stop the stupid idea you don't know why! You failed to object. When the court grants a PCA it is because the Appellee was correct. Read their brief, dummies.

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