Is Oral Argument Dying a Slow Death?
At Texas Blue, former Eighth Court of Appeals Justice Susan Larsen has posted some interesting comments about what she calls "the slow death of oral argument." Comparing 2001 and 2005 statistics from our state's 14 intermediate appellate courts, Justice Larsen concludes that the number of oral arguments has "dropped precipitously" and that this aspect of the appellate process "is in its death throes."
The statistics Justice Larsen cites are somewhat alarming. For example, the Thirteenth Court of Appeals apparently heard only 11 arguments out of almost 1,000 cases (1.1%) decided in 2005. The highest ratio among the other courts was 16.7%.
Justice Larsen concludes:
You may be asking, why should I care? (Assuming, of course, that this little column has not lulled you into a much-needed power-nap.) My short answer to you is this: judges serve the people. They are not direct representatives as are legislators, but it is their job to decide disputes among real people, not just theorize with briefs and transcripts and law books and computer research. Listening to the representatives of those people, even for fifty minutes, focuses the minds of the judges on the dispute. It gives the entire panel, not just the single judge writing the opinion, a period of time to contemplate that case alone; asking questions, mulling through logical consequences, and doing their job. It promotes discussion amongst the judges, highlights their differing outlooks, enhances critical thinking and results in better law. More than that, oral argument is the only opportunity the public has to observe the decision-making process at work; every other aspect of appellate opinion-ma king is secret.
This slow death of oral argument is regrettable, and reversible. Ask your judges about it; ask candidates for the courts of appeals about it. You are hiring these judges by your vote, and you deserve to know whether they think cases on appeal deserve a thorough discussion in a public courtroom. If judges dont think this, you deserve to know why not.
Setting aside the political implications of Justice Larsen's comments, appellate practitioners should be concerned about the numbers she cites. How do we hone our oral advocacy skills if the best we can hope for is a 1 in 6 chance that argument will be granted? How are less experienced appellate lawyers supposed to acquire the number of arguments necessary to qualify for the board certification exam? These are questions I would like to see answered.
Here is a comment I submitted to Justice Larsen's post today:
As a practicing appellate lawyer, I agree that these statistics should cause concern. But there is another side to this story that's not explored here. Most appellate judges and practitioners would agree that oral argument is not justified in every case, particularly those in which the law is well settled. In fairness, I would like to see statistics on the effect increasing the number of oral arguments would have on already-scarce judicial resources. Comment here or at http://tinyurl.com/2fv8ox.
D. Todd Smith
Board Certified, Civil Appellate Law
Texas Board of Legal Specialization
http://www.appealsplus.com
Texas Appellate Law Blog: http://www.appealsplus.com/talblog