Why Oral Argument Is Still
Important, and How to Make It So
by John J. Bursch
The debate over the value of oral argument appears to be turning in favor of those who believe that spoken words add little to completed briefing. Increasingly, courts are canceling oral arguments and deciding cases strictly on written submissions. Other courts are shortening argument times and encouraging counsel’s participation by video-link or a related remote technology. But the California Supreme Court has recently issued a formal opinion that firmly reinforces the importance of oral argument (at least in California), by striking down a California Court of Appeals procedure under which parties were being actively discouraged from exercising their right to have appellate counsel speak directly to the panel. The decision is notable not only for its unusual subject matter, but for the insight it provides regarding effective oral advocacy, from the perspective of both counsel and the bench.
In People v Pena, 32 Cal. 4th 389 (Cal. 2004), the California Court of Appeals was asked to determine the propriety of a form oral argument notice that a division of the Fourth District Court of Appeal used regularly to ascertain whether appellate counsel would be willing to waive oral argument. After the briefing in Pena was complete, the Fourth District sent defendant’s appellate counsel a tentative opinion that proposed to reject defendant’s claims and affirm his conviction. Accompanying the draft was a standard notice that stated:
Enclosed is the tentative opinion of a majority of the three-justice panel hearing the appeal. The court has determined that (1) the record and briefs adequately present the facts and legal arguments, (2) oral argument will not aid the decision-making process, and (3) the tentative opinion should be filed as the final opinion without oral argument in the interests of a quicker resolution of the appeal and the conservation of scarce judicial resources.
Id. at 394.
The notice then informed appellate counsel that oral argument would be deemed waived unless defendant affirmatively requested argument within 12 days, and that no relief from default would be granted “under any circumstances.” The notice also informed counsel of several additional points, including that “[c]ounsel may not repeat arguments made in counsel’s briefs” and that “[s]anctions may be imposed for noncompliance with this notice.” Included with the notice was a form titled “Instructions for Requesting Argument,” which reiterated that “the court has decided that oral argument will not aid the decision-making process.” Id. at 394-95.
Defendant’s appellate counsel chose not to request oral argument, and the Court of Appeals (unsurprisingly) filed its tentative opinion as its final opinion, with only minor, inconsequential changes. Defendant petitioned the Court of Appeals for rehearing, contending that the Court’s actions denied him his state constitutional right to due process of law and infringed on this right to present an oral argument. The Court of Appeals denied the petition for rehearing, but the California Supreme Court granted defendant’s petition for review. Id. at 395.
The California Supreme Court began by emphasizing that the Court of Appeals’ “adoption of a procedure under which it prepares and provides the parties with a tentative opinion prior to oral argument does not in itself improperly interfere with the right to present oral argument on appeal,” provided the court is not “unalterably bound by the writing” and gives “due consideration” to any oral argument actually presented. Id. at 399. In other words, so long as the draft opinion is truly “tentative,” and the court is willing to “discard the writing if counsel’s arguments persuade the court that its tentative views were incorrect,” the draft opinion alone does not itself infringe on the right to present an appellate oral argument. Id. at 399-400.
The Court held that the notice accompanying the draft opinion was more problematic. The Court first focused on the notice’s statement that the Court of Appeals has already determined the tentative opinion “should be filed as its final opinion without oral argument.” Id. at 400. This language suggested strongly that the Court of Appeals’ tentative opinion was not actually tentative. The notice stated unequivocally that “oral argument will not aid the decision-making process,” and that “the tentative opinion should be filed as the final opinion without oral argument.” The California Supreme Court concluded that this language could cause counsel to doubt whether oral argument would, in fact, be meaningful, and that it had the potentially to discourage improperly the exercise the right to present oral argument on appeal. Id. at 400-02.
The Court then focused on the notice’s admonition that counsel not repeat arguments made in the briefs. The Court viewed that admonition as inconsistent with the rule that appellate courts will not consider points made for the first time at oral argument. “[U]nder the literal language of the notice, if appellate counsel requested oral argument he or she faced the Hobson’s choice of orally arguing a point made in the briefing and facing possible sanction, or raising only new points during oral argument that the appellate court properly could decline to entertain.” Id. at 403. Accordingly, the Court directed the Court of Appeals to refrain from using the notice in future case. Id.
There are a number of lessons for appellate practitioners and judges in the Pena decision. First, some judges still consider oral argument extremely important, so important that for them, oral argument will have an impact on the outcome. Accord Bright & Arnold, Oral Argument? It May Be Crucial!, 70 A.B.A J. 68, 70 (Sept. 1984) (noting that two Eighth Circuit judges changed their mind in 17% and 31% of the cases in which oral argument was held); Wald, 19 Tips From 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 17 (2001) (“Oral argument seldom brings you 180 degrees around, but if your tilt is, say, 50-49%, it can make a big difference”). Thus, while monetary issues may influence a client’s decision to send counsel on a cross-country trip to appear in person before an appellate panel, the presumption should be in favor of exercising this important right.
Second, more courts should adopt the practice of circulating a draft opinion to counsel before oral argument. A tentative written statement helps the court collect and organize its thoughts. More important, a draft opinion gives appellate counsel something concrete to aim at during oral argument, providing counsel and the court with an opportunity to correct egregious mistakes in logic or precedent before such mistakes make it into a bound reporter volume. Encourage local appellate judges to adopt this helpful practice; the only downside is to increase the despair of those advocates who, having received a favorable draft opinion, find themselves on the losing end of a final opinion.
Third, counsel should consider strongly the California Court of Appeals’ admonition not to simply repeat verbatim the arguments made in the briefs. Although the California Supreme Court held this admonition improper, the Court of Appeals’ advice was actually right on the mark. If appellate counsel’s written argument has failed to persuade the panel (or the panel’s clerks), what basis does counsel have for believing that restating the argument orally will do so? Oral argument is an opportunity to pick up the file and examine it with fresh eyes, looking for new perspectives, different ways to state an argument, or additional analogies that might persuade the panel in ways the brief did not.
The importance of this “fresh look” was impressed upon me recently when I was retained to argue appeals in consecutive months in cases where I had no prior involvement in the trial or appellate courts. Talk about a fresh look! After experiencing initial frustration, however, I found that my preparation for oral argument was actually quite liberating. Although generally confined to the issues and arguments raised in the briefs, I was not bound by my own pre-conceived notions of how the case should be structured-notions that form and harden during the brief writing process. Thus unbound, I was free to be more creative with the presentations and to develop new ways to look at the legal issues presented. Although it is impossible to know whether this freedom resulted in a measurable improvement in the quality of the arguments, it was clear the panel members sat up and took notice. I attribute their attentiveness and active questioning at least in part to the fact that they had been engaged in a completely different manner than they had been in the briefs.
When preparing for oral argument, then, imagine that the court, like the Court of Appeals in Pena, has threatened counsel with sanctions for repeating arguments made in the briefs. This should both encourage creativity and discourage verbatim regurgitation. Although an argument once framed is not easily recast, take the time necessary to do so, relying heavily on associates, peers, and lay persons who are willing to put up with incessant ruminations about an undecided legal question. Focus in particular on why it is important for the court to render a decision in your client’s favor, and the consequences if it does not. Common sense and a feeling for how a narrow issue should fit into a broader legal or societal context are as important-maybe more important-than being able to recite the facts and holding of each relevant case authority. The appellate panel is more concerned with big picture issues than the trial court; be sure the argument paints on a large canvas.
In sum, oral argument is still important (not just in California), but its ability to change a panel’s collective mind depends in large part on the advocate. If counsel’s intent is to simply summarize the briefs at oral argument, the client would be just as well served if arguments were waived altogether. While the California Supreme Court was right to criticize its Court of Appeals for discouraging parties to exercise their right to oral argument, the Court may have erred in so strongly disapproving of the Court of Appeals’ threat to sanction appellate counsel who “repeat arguments made in counsel’s briefs.” Prepare as if such sanctions may actually be imposed, and you will find that oral argument can make a difference after all.
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John J. Bursch practices appellate, condemnation and business litigation at Warner Norcross & Judd LLP, where he is the founder and Chair of the firm’s Appellate Practice Group. He received a BA (Math) and BM (Music) summa cum laude from Western Michigan University, and JD magna cum laude from the University of Minnesota. He is a member of the State Bar’s Appellate Practice Section.