Does Oral Argument Really Matter?
[Excerpted from materials presented at the Tennessee Appellate Academy in Memphis, Tennessee on April 1.]
Can you change a judge’s mind at oral argument? If you are committed to doing one, the only attitude to take is that you can; any other assumption is both risky and counterproductive. One writer stated that “oral arguments are as useless today as the judges during my clerkship considered them….Oral arguments have become little more than a moot court exercise….At the end of the day, you may have picked up points for style, but you have still lost your case.” It is no surprise that this was written by someone who represents criminal defendants in Texas.
Historically, oral argument certainly garnered more attention from the courts. In the United States Supreme Court, for example, oral argument originally lasted for days at a time! However, since 1931, each side gets thirty minutes to present to the Nation’s Highest Court in oral argument.
If the question is what percentage of the time is a judge’s mind changed by oral argument, the answer seems to vary widely depending on the judge who is asked. One self-imposed poll of three 8th Circuit judges tracked their cases over a ten month period and found that their minds were changed 31%, 17% and 13% of the time respectively.
An 11th Circuit judge estimated that oral argument changed his mind in no more than 10% of the cases he heard, but other Federal judges have estimated that oral arguments changed their decision in a case about 20% of the time. This was after they had all read the briefs and reached a tentative conclusion prior to oral argument.
Another judge of the Illinois Court of Appeals met with sixteen of his colleagues and asked the following questions: (1) What percentage of those cases did the oral argument affect your decision concerning the outcome of the case? The answers ranged from 0% to 100%; (2) In those cases where your decision was somehow affected; did the oral argument cause you to change your mind about the way an issue in the case should be decided? One judge again said 0%, two judges 20%, and the rest were in between.
In a study of over 200 statements made by appellate judges, 80% of them said that oral arguments are very important to the resolution of cases. Former Chief Justice of the Supreme Court, William Rehnquist, stated that oral argument has changed his ideas in somewhere between 25-50% of cases.
About 70% of federal appeals are now decided without oral argument. Some see this as an ongoing attempt, in federal courts at least, to “de-lawyer” the system. In state courts, including Tennessee, oral argument is routinely granted and continues to be a tool that effective appellate litigators must master.
At Dodson Parker, our personal unscientific polling of certain members of the Tennessee Court of Appeals and Tennessee Supreme Court reveals that oral argument is very important to them. They have typically said that in as many as 20-25% of the cases that oral argument had a substantial impact on their decision-making process. They do not agree with the old saw that you cannot win a case on oral argument, but you can surely lose it. You can win a case on oral argument. You can also lose one. You can also have no impact whatsoever.
There is no question that the brief is by far the most important part of your appeal, but oral argument should not be discounted. One writer has suggested that an oral argument is like sales; it is a chance to close a deal with a buyer–the Court. Unfortunately, your competitor has also been invited. The basic sales pitch has been made with your brief; the oral argument gives you a chance to ascertain what more it will take to sell your position and close the deal.
Sources:
Michael Duvall, When is Oral Argument Important? A Judicial Clerk’s View of the Debate, 9 J. App. Prac. & Process 121 (Spring 2007).
Hon. Joseph W. Hatchett, Robert J. Telfer, III, The Importance of Appellate Oral Argument, 33 Stetson L. Rev. 139 (Fall 2003).
Oral Argument: Does It Matter? 35 Ind. L. Rev. 451 (2002).
Hon. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567 (Spring, 1999).
How to litigate successfully in the United States Court of Appeals for the Eleventh
Circuit? 29 Cumb. L. Rev. 1 (1998).
Myron H. Bright, The Power of the Spoken Word: In Defense of Oral Argument, 72 Iowa L. Rev. 35 (October, 1986).
Robert J. Martineau, The Value of Appellate Oral Argument: A Challenge to the Conventional Wisdom, 72 Iowa L. Rev. 1 (October, 1986).