Why Oral Argument Is Still Important, and How to Make It So John J. - PDF document

ADVOCATE’S FORUM Why Oral Argument Is Still Important, and How to Make It So John J. Bursch complete, the Fourth District sent Defendant’s appellate counsel chose Warner Norcross & Judd LLP defendant’s appellate counsel a tenta- not to request oral argument, and the Grand Rapids, MI tive opinion that proposed to reject Court of Appeals (unsurprisingly) filed jbursch@wnj.com defendant’s claims and affirm his con- its tentative opinion as its final opin- viction. Accompanying the draft was a ion, with only minor, inconsequential The debate over the value of oral ar- standard notice that stated: changes. Defendant petitioned the gument appears to be turning in favor Enclosed is the tentative opinion of Court of Appeals for rehearing, con- of those who believe that spoken a majority of the three-justice panel tending that the Court’s actions de- words add little to completed brief- hearing the appeal. The court has nied him his state constitutional right ing. Increasingly, courts are canceling determined that (1) the record and to due process of law and infringed on oral arguments and deciding cases briefs adequately present the facts this right to present an oral argument. strictly on written submissions. Other and legal arguments, (2) oral argu- The Court of Appeals denied the peti- courts are shortening argument times ment will not aid the decision- tion for rehearing, but the California and encouraging counsel’s participa- making process, and (3) the Supreme Court granted defendant’s tion by video-link or a related remote petition for review. Id. at 395. tentative opinion should be filed as technology. But the California Su- the final opinion without oral argu- The California Supreme Court be- preme Court has recently issued a for- ment in the interests of a quicker gan by emphasizing that the Court of mal opinion that firmly reinforces the resolution of the appeal and the Appeals’ “adoption of a procedure un- importance of oral argument (at least conservation of scarce judicial re- der which it prepares and provides the in California), by striking down a sources. parties with a tentative opinion prior California Court of Appeals procedure Id. at 394. to oral argument does not in itself im- under which parties were being ac- The notice then informed appellate properly interfere with the right to tively discouraged from exercising counsel that oral argument would be present oral argument on appeal,” their right to have appellate counsel deemed waived unless defendant affir- provided the court is not “unalterably speak directly to the panel. The deci- matively requested argument within bound by the writing” and gives “due sion is notable not only for its unusual 12 days, and that no relief from default consideration” to any oral argument subject matter, but for the insight it actually presented. Id. at 399. In would be granted “under any circum- provides regarding effective oral advo- stances.” The notice also informed other words, so long as the draft opin- cacy, from the perspective of both counsel of several additional points, in- ion is truly “tentative,” and the court counsel and the bench. cluding that “[c]ounsel may not repeat is willing to “discard the writing if In People v. Pena , 32 Cal. 4th 389 arguments made in counsel’s briefs” counsel’s arguments persuade the (Cal. 2004), the California Court of and that “[s]anctions may be imposed court that its tentative views were in- Appeals was asked to determine the for noncompliance with this notice.” correct,” the draft opinion alone does propriety of a form oral argument no- Included with the notice was a form not itself infringe on the right to tice that a division of the Fourth Dis- titled “Instructions for Requesting Ar- present an appellate oral argument. trict Court of Appeal used regularly to Id. at 399–400. gument,” which reiterated that “the ascertain whether appellate counsel court has decided that oral argument The court held that the notice ac- would be willing to waive oral argu- will not aid the decision-making pro- companying the draft opinion was ment. After the briefing in Pena was cess.” Id. at 394–95. more problematic. The court first fo- Certworthy Summer 2004 9

pact on the outcome. Accord Bright & cused on the notice’s statement that pellate counsel’s written argument has Arnold, Oral Argument? It May Be the Court of Appeals has already de- failed to persuade the panel (or the Crucial! , 70 A.B.A J. 68, 70 (Sept. termined the tentative opinion panel’s clerks), what basis does coun- “should be filed as its final opinion 1984) (noting that two Eighth Cir- sel have for believing that restating without oral argument.” Id. at 400. cuit judges changed their mind in 17 the argument orally will do so? Oral This language suggested strongly that percent and 31 percent of the cases in argument is an opportunity to pick the Court of Appeals’ tentative opin- which oral argument was held); Wald, up the file and examine it with fresh 19 Tips From 19 Years on the Appellate ion was not actually tentative. The eyes, looking for new perspectives, dif- Bench , 1 J. App. Prac. & Process 7, 17 notice stated unequivocally that “oral ferent ways to state an argument, or ad- argument will not aid the decision- (2001) (“Oral argument seldom ditional analogies that might persuade making process,” and that “the tenta- brings you 180 degrees around, but if the panel in ways the brief did not. tive opinion should be filed as the final your tilt is, say, 50–49 percent, it can The importance of this “fresh look” opinion without oral argument.” The make a big difference”). Thus, while was impressed upon me recently California Supreme Court concluded monetary issues may influence a when I was retained to argue appeals that this language could cause counsel client’s decision to send counsel on a in consecutive months in cases where to doubt whether oral argument cross-country trip to appear in person I had no prior involvement in the trial would, in fact, be meaningful, and before an appellate panel, the pre- or appellate courts. Talk about a fresh that it had the potential to discourage sumption should be in favor of exercis- look! After experiencing initial frustra- improperly the exercise of the right to ing this important right. tion, however, I found that my prepa- present oral argument on appeal. Id. Second, more courts should adopt ration for oral argument was actually at 400–02. the practice of circulating a draft quite liberating. Although generally The court then focused on the opinion to counsel before oral argu- confined to the issues and arguments notice’s admonition that counsel not ment. A tentative written statement raised in the briefs, I was not bound repeat arguments made in the briefs. helps the court collect and organize its by my own preconceived notions of The court viewed that admonition as thoughts. More important, a draft how the case should be structured— inconsistent with the rule that appel- opinion gives appellate counsel some- notions that form and harden during late courts will not consider points thing concrete to aim at during oral the brief writing process. Thus un- made for the first time at oral argu- argument, providing counsel and the bound, I was free to be more creative ment. “[U]nder the literal language of court with an opportunity to correct with the presentations and to develop the notice, if appellate counsel re- egregious mistakes in logic or prece- new ways to look at the legal issues quested oral argument he or she faced dent before such mistakes make it into presented. Although it is impossible the Hobson’s choice of orally arguing a bound reporter volume. Encourage to know whether this freedom re- a point made in the briefing and fac- local appellate judges to adopt this sulted in a measurable improvement ing possible sanction, or raising only helpful practice; the only downside is in the quality of the arguments, it was new points during oral argument that to increase the despair of those advo- clear that the panel members sat up the appellate court properly could de- cates who, having received a favorable and took notice. I attribute their at- cline to entertain.” Id. at 403. Ac- draft opinion, find themselves on the tentiveness and active questioning at cordingly, the court directed the losing end of a final opinion. least in part to the fact that they had Court of Appeals to refrain from using Third, counsel should consider been engaged in a completely differ- the notice in future cases. Id. strongly the California Court of Ap- ent manner than they had been in the There are a number of lessons for peals’ admonition not to simply repeat briefs. appellate practitioners and judges in verbatim the arguments made in the When preparing for oral argument, the Pena decision. First, some judges briefs. Although the California Su- then, imagine that the court, like the Court of Appeals in Pena , has threat- still consider oral argument extremely preme Court held this admonition important, so important that for improper, the Court of Appeals’ advice ened counsel with sanctions for re- them, oral argument will have an im- was actually right on the mark. If ap- peating arguments made in the briefs. Certworthy Summer 2004 10