Is Oral Argument Dying?

When you think of what lawyers do for a living, the first thing you probably think of is arguing over a case in front of a judge.

You may be surprised to learn, then, that in the federal courts this staple of practicing law seems to be on the way out. The federal district courts – the trial courts of the federal system – are increasingly holding fewer and fewer oral arguments. Some district courts even have a standing default rule that they won’t hear oral argument on a motion unless the presiding judge explicitly asks for it.

This trend is even more accentuated in the federal circuit courts – the appellate courts of the federal system. While the Supreme Court of the United States holds oral argument in almost all of its cases, the circuit courts of appeal do not.

In fact, a recent study conducted by the American Academy of Appellate Lawyers found that the majority of appellate cases decided on the merits by the circuit courts of appeal did not have any oral argument. For example, the percentage of cases decided by the Fourth Circuit Court of Appeals (which rules on cases from Maryland, North Carolina, South Carolina, Virginia, and West Virginia) involving oral argument was only 11 percent! The best result was posted by the D.C. Circuit, which held oral argument in 55 percent of its cases. (The report can be found here: https://www.appellateacademy.org/publications/oral_argument_initiative.pdf ).

These statistics are demoralizing. To be sure, the federal courts are very busy, with long calendars of cases that need their attention. However, it is difficult to maintain confidence in a judicial system that does not allow the parties to make the best presentation of their cases. Certainly, oral argument is not necessary on every motion or appeal, but oral argument is one of the best ways a party can focus a judge’s attention on the key issues or injustices of a case.

These statistics are especially concerning to the type of work we do: representing ordinary people seeking insurance benefits. As the voice for plaintiffs, the burden is on us to prove our cases, and very often the law is stacked against us and in favor of insurance companies. Being able to present our cases to a judge, in person, helps to ensure that our clients receive the fair treatment in court that they deserve.

More importantly, oral argument also allows the public to better understand how our courts function. When lawyers present oral argument, they are forced to pinpoint the most crucial issues and facts, which enables observers to better understand what issues are at stake, and why judges rule the way they do.

The Academy presented its report to Chief Justice Roberts of the Supreme Court in August. We’ll see what action, if any, the courts take.

 

 

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