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Fourteen years ago, I interviewed with a large New York law firm. Conducting the interview was an eighth-year associate, who noted, with pride, her numerous document productions and motion drafting, and then said, again with pride, that her first oral argument was scheduled in two months.

Times have changed greatly since then. An informal poll of New Jersey federal bar members suggests that federal court oral arguments in this state are vanishing faster than the New Jersey Nets.

Since the inception of our federal court system, oral argument was generally preferred over the written word, and oral arguments sometimes lasted for days. With the advent of the word processor and the ease of filing reams of paper, the balance shifted to the written word. New Jersey federal jurists, consequently, have increasingly dispensed with oral arguments, relying on written submissions.

Similarly, L.Civ. R. 7.1(b) and Appendix N to the Local Civil Rules embody a “don’t call us, we’ll call you” oral argument policy where the court contacts parties if it requires oral argument. This practice has led many courts to dispense with oral arguments to save time. Federal bar members, however, should be troubled by this development. Further, they have an obligation to lobby the court for oral argument because such arguments are too important to lose as a training tool for young lawyers and as a method of communication between the bench and bar.

A generation ago, many seasoned federal court litigators cut their teeth on oral arguments. Now, the oral argument’s demise in federal court is taking its toll on the development of professional skills of many young New Jersey lawyers. Moreover, another human connection between the federal bench and the bar is lost, and, most troubling for young lawyers, is not being replaced.

Additionally, notions of fairness, efficiency and expediency favor a strong oral argument policy. Without oral argument, parties opposing a motion do not have an opportunity to respond to the reply papers submitted by the moving party.

Although the court may permit a sur-reply letter if a party makes such a request, only oral arguments rectify this imbalance and permits advocates an opportunity to address reply arguments directly with the court. Oral arguments also provide the parties and the court an opportunity to develop a more complete record if appellate review is ultimately necessary. (Ironically, a district court may dispense with oral argument for a summary judgment motion while the Third U.S. Circuit Court of Appeals would require an oral argument for that decision’s appeal.)

Oral arguments also permit the bench and bar to interact and better understand the case and the motion. Judges may also use oral argument as an opportunity to resolve other issues, possibly curtailing the need for further discovery, investigation or motions. In fact, the court may choose to explore more efficient resolution techniques with this captive audience, including ad hoc settlement conferences.

No doubt some attorneys appreciate the reduction in oral argument because the time may be devoted to other cases or tasks. However, such an approach is shortsighted because clients are better served by having a federal judge decide a case with counsel’s oral argument.

As Chief Judge John Bissell stated on March 25 at the annual conference of the Association of the Federal Bar of the State of New Jersey, oral argument may make the difference in some cases. Oral arguments also assist advocates in gauging the reaction by courts and adversaries to certain litigation positions, producing valuable insight for possible settlement discussions or future trial tactics, thereby benefiting the client.

In sum, the New Jersey federal bar has an opportunity to improve the litigation process by bringing back oral argument, provide for young litigators’ skills development and add greater value to clients and the courts.

Badway, a former Securities and Exchange Commission enforcement attorney in New York, is a partner and practices securities law at Saiber Schlesinger Satz & Goldstein in Newark, New Jersey. He also is an adjunct assistant professor at Brooklyn Law School, where he co-teaches a course on securities enforcement law.

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