Oral argument—the once commonplace art of making one’s case before the judge—is slipping into obscurity in the nation’s federal courtrooms after steadily going out of fashion.
This is especially so in the federal circuit courts of appeals across the country. In the 12-month period ending Sept. 30, 2006, 25.9 percent, or 8,956, of all 34,580 cases decided on their merits were disposed of after hearing arguments, according to data from the Administrative Office of the U.S. Courts. In the most recent statistical year, 2015-16, that number dropped 8.4 percentage points to 17.5 percent, or 6,392 of 36,547 cases. (The AOC data excludes the U.S. Court of Appeals for the Federal Circuit.) The overwhelming majority of federal appeals were decided on the briefs in 2015-16.
Compare those figures to 1996-97, the first statistical year of available oral argument data from the AOC, in which 40.1 percent, or 10,357 of 25,840 cases, were resolved by the circuit courts after hearing argument. While in the district courts, the numbers depend largely on individual judges’ preferences on whether to hold argument or not, observers noted that oral argument is on the decline in those courts also.
Third Circuit Chief Judge D. Brooks Smith said federal courts, especially his, have seen a “demonstrable decline” in caseloads and civil litigation, especially since the Great Recession. That has led to a decline in oral argument nationwide.
According to the AOC, the Third Circuit heard the fewest oral arguments of all the circuit courts in 2015-16—208—though that was only the third-lowest percentage of a court’s total caseload, at 9.3 percent. The Fourth Circuit had the lowest percentage, hearing oral arguments in only 5.9 percent, or 287, of its 4,874 total cases that year.
The expense of oral argument is something that is often overlooked in the conversation over its disappearance, Smith said. Travel costs can be prohibitive for clients who need to send their lawyers cross-country to appear in a circuit court. This leads to clients settling with having their arguments made in briefs.
Former U.S. District Judge Stephen Orlofsky of the District of New Jersey said judges are more inclined to decide issues on the briefs anyway.
“You would have oral argument and the lawyers would repeat what’s in their briefs and it became a huge waste of time, because why do I need to hear oral argument if a lawyer is going to repeat what’s in a brief?” he said.
Whereas some circuit courts have seen a shrinking caseload, the increasing number of cases pouring into district courts forces those judges to prioritize theirs more carefully, Orlofsky said.
For the most part, Smith said, lawyers do stick pretty close to their briefs when arguing before the court. Be that as it may, he noted that there is still use for the practice.
“The phenomenon of oral argument is something I still marvel at as something that is able to refine a point orally that might not come across on the printed page,” Smith said.
It also provides judges with the opportunity to ask for greater clarification of a point that may have been unclear in a brief. Additionally, Smith said oral argument can be used by a judge on a panel to persuade his or her colleagues on a certain point.
“That judge may be seeking to make a point with one or both of the other judges on the panel,” Smith said.
Arturo Gonzalez, chair of the commercial litigation and trial practice group at Morrison & Foerster in San Francisco, said the disappearance of oral argument from federal courtrooms is cause for concern and is part of a broader problem.
“My broader concern is that there are fewer and fewer opportunities for lawyers to try cases in court,” Gonzalez said. “And now there are fewer and fewer opportunities for motions to be argued in court.”
This could have an impact on the future of the legal profession, Gonzalez said: young attorneys have fewer avenues to get courtroom experience, and there are some who have been working for five years and have not said a single word in court.
“That is not hyperbole, that is reality,” he said.
Advocacy requires practice, and to Gonzalez, young lawyers these days are at a severe disadvantage because of the lack of oral argument.
“I’m very concerned about who is going to be trying cases 10 to 15 years from now,” Gonzalez said, “and it concerns me that we have a number of lawyers throughout the spectrum who just aren’t getting any opportunities to go to court at all.”
Gonzalez attributes the drop-off in oral argument numbers to an increasing amount of work per individual judge, a symptom of a record number of vacancies in the district courts.
“Judges are so overburdened they don’t have the luxury of giving you 20 minutes to argue,” he said.
Making decisions on the briefs alone can also slow down a case. Conversely, Gonzalez said that when oral argument is given, judges are more prepared to decide an issue and often have draft opinions in front of them when they ask attorneys questions.
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