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. read more