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Citation: Stephen L. Wasby, The Functions and Importance of Appellate Oral Argument: Some Views of Lawyers and Federal Judges, 65 Judicature 340 (1982) Provided by: University of Washington Law Library

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The functions and importance

of appellate oral argument:

some views of lawyers and

federal judges

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340 judicature Volume 65. Number 7 February, 1982

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Although some critics have proposed curtailing or

eliminating oral argument in certain cases,

both judges and lawyers believe

it plays a vital role in the appellate

process, a recent survey shows.

> by Stephen L. Wasby

~ne of the most traditional and im-

portant elements of deciding cases on appeal is oral argument, an ele- ment of advocacy older than writ-

lJ ten briefs in this country. Briefs originally were not required in appeals, and oral argument

J1 continued without time limits even when briefs were submitted. Eventually briefs did begin to displace argument: the Supreme Court first waived oral argument when written argu- ments were submitted, then mandated briefs prior to argument, and finally both reserved

argument for the most important cases and reduced the time granted each party.t

Curtailment of oral argument in other appel- late courts, partly the result of caseload pres- sure, has attracted continued attention. Var- ious sources have warned that eliminating oral argument in all cases would harm the appel- late process. 2 Most recently, the Devitt Com- mittee (the Committee to Consider Standards for Admission to Practice in the Federal Courts of the Judicial Conference of the United States) brought further attention to legal advocacy at both trial and appellate levels. The "substan- tially divided" committee, however, made no recommendations concerning appellate advo- cacy because it found "the problems presented ... not sufficiently serious to call for the recom- mending of remedies" 3-at least by compari- son with trial advocacy, to which the commit- tee devoted the bulk of its attention. Despite the Devitt Committee's view, appellate advocacy remains of considerable importance.

Recent literature shows tension between two divergent tendencies: to retain an essential practice, part of the "procedural amenities" through which courts are "seen to be obeying and enforcing the law," 4 and to curtail its use in some types of cases to facilitate its retention in others, where it is thought more useful.'

'I,

.- -

"Your Honor, I think I speak for everyone when I say 'thank you' for the change of venue!... "

This article looks at the opinions of the two groups most immediately concerned with ap- pellate argument: lawyers and judges. It is based on interviews with circuit and district judges in the Ninth U.S. Circuit Court of Appeals and with attorneys who had argued

before that court.6

All the circuit judges and most of the district judges, in their careers as lawyers, had argued appellate cases, but only a few had done so extensively. The experience of the surveyed lawyers is disproportionate to that of most lawyers because not many lawyers engage fre- quently in appellate work and still fewer argue appellate cases. Two of the attorneys had argued more than 200 state and federal appel- late cases each, two others had argued more than 100, and two more had argued between 50 and 100. The least experienced attorneys, by contrast, had argued fewer than 20.

Half the circuit judges said their views of oral argument had changed since their days as practicing lawyers, also true of most of the district judges responding; the other half of the

This article is drawn from a more extensive report. Wasby, Oral Arg'ument in the Ninth Circuit: The View from Bench and Bar, II GOLDEN GATE L. REV. 21 (1981). Finan- cial assistance for the research came from the Office of Research and Projects, Southern Illinois University at Carbondale. and from the Penrose Fund of the American Philosophical Society.

I. See generally Washy, D'Amato and Metrailer. The Functions of Oral Argument in the U.S. Supreme Court, 62 QUARTERLY J. SPEECH 410, particularly at 412 (1976).

2. See Commission on Revision of the Federal Court Appellate System, STRUCTURE AND INTERNAL PROCEDURES: RECOMMENDATIONS FOR CHANGE 106, 107 (1975).

3. Judicial Conference of the United States, Committee to Consider Standards for Admission to Practice in the Federal Courts, Report and Tentative Recommendations 30-31 (1978).

4. Carringion, Ceremony and Realism: Demise of Appellate Procedure, 66 A.B.A.j. 860 (1980).

5. Godbold. Improvements in Appellate Procedure: Better Use of Available Facilities, 66 A.B.A.J. 863 (1980).

6. In the spring of 1977, all but one of II active-duty circuit judges and five of the seven senior circuit judges were interviewed as were a dozen district judges, primarily from California and Oregon, chosen from those who had sat frequently on the appellate court "by designation." To provide some comparison with the judges' responses and a different perspective, 13 San Francisco lawyers (all those contacted) were also interviewed, and responses to mail questionnaires were obtained from six Los Angeles law- yers (roughly one-third of those contacted). All the lawyers had argued more than one case before the Ninth Circuit in the previous year. Lawyers and judges were, for the most part, asked parallel questions.

342 Judicature Volume 65, Number 7 February, 1982

Screening out cases thought not worthy of argument, the practice

in most circuits, has made argument more

valuable when it occurs.

circuit judges said their views had not changed. Those whose views had changed used to feel that as lawyers they could help judges or could "guide the judges" with their knowledge and that "there was something I could add." 7 Now, observed one, he had found as a judge that a "strong minority" of cases was so deficient in merit that "if John Davis argued, it wouldn't make a difference." Other judges now realized that the court's caseload prevented oral argu- ment in every case. Moreover, one noted, judges' preparation-consistently high, unlike the sit- uation in some state appellate courts-made argument less useful, as did the short time allowed for it.

Almost two-thirds of the lawyers had changed

7. Material appearing in quotation marks without attribution is drawn from the author's interviews.

8. Goldman, ArTITUDES OF UNITED STATES JUDGES TOWARD LIMITATION OF ORAL. ARGUMENT AND OPINION- WRITING IN THE UNITED STATES COURTS OF APPEALS

(Washington, D.C.: Federal Judicial Center, 1975): Drury, Goodman and Stevenson, ATTORNEY ATTITUDES TOWARD LIMITATION OF ORAl. ARGUMENT AND WRITTEN OPINION IN THREE U.S. COURTS OF APPEALS (Washington, D.C.: Bur- eau of Social Science Research, 1974).

9. Marvell. APPELLATE COURTS AND LAWYERS: INFOR- MATION GATHERING IN THE ADVERSARY SYSTEM 75 (West- port, Conn.: Greenwood Press, 1978).

10. Bright, The Changing Nature of theFederalAppeals Process in the 1970s: A Challenge to the Bar, 65 F.R.D. 496, 505 n. 8 (1975).

their views of appellate argument from prior to participating in it; most now saw it as less important. They found that "brilliance" had littleeffect on the court, that argument was not "the highly persuasive medium for thejudges"

they had thought it would be, and that the judges asked fewer questions than they had anticipated. Indeed, some said that at times

argument seemed superfluous. This did not, however, stem from any dissatisfaction with the Ninth Circuit. On the whole, the lawyers were satisfied with oral argument in that

court-"by and large, an agreeable court to argue to," "prepared," and "open," with the judges asking "intelligent questions."

In the remainder of this article, we examine first whether appellate oral argument is thought more important for judges or for lawyers. Then we turn to discuss ways in which oral argument helps judges and attorneys and the functions oral argument is thought to per- form. We follow this by a look at whether judges and lawyers believe oral argument sig- nificant or determinative, as well as the types of cases in which oral argument is thought to be most and least helpful. We draw on Ninth Cir- cuit interviews and on comments from other studies, particularly Federal Judicial Center surveys of judges and of attorneys in the Second, Fifth and Sixth Circuits.8

How oral argument helps "A great many appellate judges... strongly believe that the arguments are a major help," Marvell has noted.9 The chief judges of the U.S. courts of appeals, responding to Judge Myron Bright's queries, generally found oral argument valuable- "sometimes when least expected," according to First Circuit Judge Frank Coffin,' but generally "only in some cases." Screening out cases thought not worthy of argument, the practice in most circuits, has made argument valuable more often when it takes place. Some feel, however, that when judges have long thought about a problem, oral argument is not likely to add much to the resolution of a case.

Both circuit and district judges and lawyers in the Ninth Circuit were almost unanimous in finding appellate oral argument helpful. An interesting difference does occur, however, be- tween judges' and lawyers' opinions on whether

argument is more important for lawyers or judges or is equally important for both. Roughly half the circuit judges felt oral argu- ment equally important for both groups; the other half was divided between those who thought it more important for judges and those who thought it more important for law- yers.tt However, no lawyers believe oral argu- ment more important for themselves, except perhaps as a way of impressing clients; two- thirds said it was equally important for the two groups, with the remainder finding it more important for the judges. The lawyers' posi- tion may be explained by a circuit judge's observation that "at the appellate stage, the case is no longer the lawyer's but the court's."

A retired state supreme court justice has written that the functions of oral argument are, in descending importance:

(I) to persuade judges, (2) to focus on one important matter only, (3) to reiterate most major points in the brief, (4) to clarify facts, (5) to counter opposition's arguments, (6) to ap- peal to "justice," "right," and "fairness," (7) to legitimate the legal process by a public con- frontation of issues, (8) to urge judges to read (or reread) briefs, (9) to prepare judges for con- ference deliberations,(10) to force judges to communicate with each other.'

2

Ninth Circuit judges and attorneys differed in the emphasis each group placed on ways that appellate argument helped.' 3 Judges found principally that argument helped them clarify matters and focus on important issues, with the opportunity to communicate with lawyers and ask questions only slightly less important. Judges also suggested that oral argument provided information and aided in disposing of cases. Least frequently noted was argument's assistance in increasing the visibil- ity of the court.

For attorneys, clarification and an opportun- ity for communication with judges were men- tioned more than other functions of argument for the judges, with neither function predom- inant. Attorneys gave far less attention to pro- viding information, assisting in disposition of cases, givingjudges an opportunity to ask ques- tions, and helping to save judges' time.

Judges' and lawyers' comments on argu- ment's functions for lawyers also revealed differ- ences. Most frequently mentioned by judges

were argument's functions of assisting lawyers in clarifying matters, persuading judges, and generally in communicating with the judges. Least frequently noted were providing informa- tion to judges, answering judges' questions, and making the lawyers's case more visible.

Lawyers spoke about the usefulness of argu- ment for themselves in persuading and prod- ding judges. They also gave considerable weight to argument's help in clarifying issues. Lawyers also found of moderate importance that oral argument helped them learn about judges. Least frequently mentioned as a func- tion of appellate argument for lawyers were the opportunities to answer questions or to help facilitate disposition of cases.

Assisting the judge

Public relations. There is a "public relations" reason for oral argument-so that lawyers and their clients will feel that their cases have been heard. As one judge observed, lawyers need the satisfaction of knowing they have presented their cases well. The other side of this "P.R." coin is that oral argument assists in legitimat- ing the court's judicial function. 4 The Federal Judicial Center's lawyer survey showed that slightly more than half the lawyers in each cir- cuit studied agreed that "when a litigant is de- nimed the right to have his lawyer argue his ap- peal, the litigant will feel that he has not had his day in court."' 5 Submission of briefs is not thought sufficient to assure lawyers and liti- gants that judges have focused on the case, be- cause one could not be sure the briefs were read.

As Marvell notes, the "public relations func- tion" of contact between attorneys and judges

11. Both one senior district judge and two lawyers thought argument equally uniil)ortanl for both lawyers and judges.

12. Weaver, quoted in Sheldon and Weave, POLITICIANS, JUDGES, AND TIlE PEOPLE: A STUDY IN CITIZENS' PARTICIPA-

"TION 86 (Westport, Conn.: Greenwood Press, 1980). 13. In discussing oral arguments functions as viewed

fron the Ninth Circuit, we draw prinmarily on judges' comments about why oral argument is helpful to them, and on lawyers' responses as to why they find argirment helpful. Ahltough a high proportuon of lawyIers found oral argurment more important for judges than for themselves, they made few specific comments as to how it helped the judges. Perhaps they simply found reasons why oral argttment was hellful to judges to be the complement of reasons why it assisted lawyers. 1'. See Wasby et al., supra n. I, at 418. 15. Drury, supra n. 8, at 306 n. 13.

344 Judicature Volume 65, Number 7 February, 1982

Oral argument is valuable for establishing a

human connection between bench and bar.

during argument "is especially important when attorneys suspect that not all judges read the briefs or that the court's staff plays a major role in the decision process."' 6 An observer of the First Circuit adds that "by demonstrating the openness and the balanced presentation of all material issues in an individual case, the court assures the public that each action is being given their personal and undivided attention in order to reach a reasoned solution."' 7 The Hruska Commission echoed this perspective in pointing out that oral argument "assures the litigant that his case has been given consid- eration by those charged with deciding it. '"8

Communication. Oral argument is valuable for "establish[ing] a human connection be- tween bench and bar" because it is the only face-to-face communication between attorneys and judges during a case's appellate course. As a Ninth Circuit judge noted, argument assists lawyers by "help[ing] the judges to know who the attorneys are" as well as giving lawyers "a

16. Marvell, supra n. 9, at 306 n. 13. 17. Corey, Some Aspects of Oral Argument in the United

States Court of AppealsJor the First Circuit, 21 BOSTON B. J. 21, 32 (1977).

18. STRUCTURE AND INTERNAL PROCEDURES, supra n. 2, at 106.

19. Quoted in Maris, In the Matter of Oral Argument, I PRACTICAL LAWYER (1955), quoted in Commission on Revision of Federal Appellate System, FIRST PHASE: HEAR- INGS 67 (Washington, D.C.: 1973).

20. Drury, supra n. 8, at 38 (Table 26). 21. See Wasbyetal.,supra n. 1,at 418: Wasby, Commun-

ication Within the Ninth Circuit Court of Appeals, 8 GOLDEN GATE L. REV. 1,5 (1977).

notion of the orientation of the court" and the way it is thinking.

The crucial role of judge-attorney commun- ication has often been stressed. According to the late Third Circuit Judge William Hastie, "The oral argument is the court's one chance to invite counsel to meet head on what seemed to be the strongest opposing contentions."19 In the Federal Judicial Center survey, there was extremely high agreement among lawyers that "oral argument permits the attorney to address himself to those issues which thejudges believe are crucial to the case.''20

In addition to the above considerations, the process and "mechanics" of conducting argu- ment help Ninth Circuit judges, particularly because argument comes after a judge has read the briefs. The judge thus hears counsel "against the generalized background of the case." Some judges found this particularly so when a lawyer is "a better talker than a writer"-and some judges simply hear better than they read, as one judge commented. (Oral argument also allows judges to criticize an incompetent lawyer without having to reduce the criticism to writing.)

A less-well-noted aspect of oral argument is communication among judges. Questions os- tensibly directed to an attorney may be intended for a judicial colleague, to sway that judge or at least to warn of the need to face certain issues.

2' As one lawyer noted, judges "may use the attor- ney's mouth to convince his colleagues." Ap- pellate argument thus provides judges an "op- portunity to respond to each other's questions" and to communicate the "key points of a case" to other members of the panel. If this is effec- tive, at argument's conclusion judges "will have an excellent idea of the key points of a case" and of a problem's "soft underbelly" as well as a sense of other judges' views. Conces- sions may be more important tojudges when a lawyer makes them than if they heard the same argument from a colleague during their collec- tive consideration of the case in conference.

Questions. Central to communication dur- ing appellate argument are the judges' ques- tions. Ninth Circuit judges emphasized the op- portunity that oral argument provides for exploring doubts they had about the record and "items not entirely clear." A lawyer's re-

sponse may emphasize a point differently from the emphasis conveyed by the briefs. As a re- sult, "Sometimes we can't understand until we ask questions." (Ninety per cent of attorneys in the Federal Judicial Center survey agreed that "by asking questions of counsel, thejudges are better able to avoid erroneous interpretations of the facts or issues in the case.")

2

Questions also allow judges to test attorneys' positions, particularly to see whether the law- yer can help the judge "decide the case his way easily." A lawyer unable to answer effectively will not carry the court. In a complex case, an

attorney's responses may provide a judge with necessary "reinforcement'' for tentatively adopted positions.

Ninth Circuit attorneys found it easier to argue to judges who asked more questions. They disliked "passive judges," "who stare at you or over your head" or "just smile or go to sleep." Indeed, one lawyer said hedidn'tobject to a judge "disposed against him" if the judge asked questions. The lawyers were, however, concerned about the quality as well as about the frequency of questions; judges who merely "interrogated" were not appreciated, but law- yers generally preferred "tough" or "percep- tive" questions.

Despite lawyers' general preference for judges who asked (good) questions, some law-

yers felt that judges' questioning cut into the time needed to argue their cases. This is like the conflictMarvell found: several attorneys he in- terviewed "said they liked questions; yet they

complained that the questions cut into their allotted time so much that they had to abandon some of the points they had wished to emph-

asize." 23

Information, clarification and focus Questioning allows judges to obtain informa- tion and to clarify elements of a case. Appellate argument brings to their attention matters not evident in the briefs or not available earlier.

24

Finding out about matters the last brief left unresolved is of some importance when much time has elapsed between filing of the last brief

and oral argument. Information conveyed to the judges through argument includes factual and procedural items as well as new legal

arguments. Argument is particularly likely to provide judges new information when a law-

yer " 'lays back' and doesn't put everything in the briefs." Argument also allows judges to "learn where new cases would go if unleashed in this case" as well as to learn about the "prac- tical effect" unique cases might have.

Oral argument "allows the judges... to clear up any doubts that the court might have about the case or the lawyer's approach to it," ob- serves Eighth Circuit Judge Myron Bright; 5

many Ninth Circuit judges agreed that clarifi- cation was a salient function of appellate argument. Clarification occurs not only when briefs are "ambiguous" or even poor, but also when they are of high quality, especially in extremely complex cases.

Argument can lead to clarification when it prompts judges to return to the record, but a lawyer can also "straighten out" a judge at argument before the judge engages in such research. Clarification involves the correction of errors, but it also includes "cast[ing] new light" on important aspects of cases that are vague in the briefs when the court requires the lawyer to clarify his position through a "good, logical analysis of the briefs" during argument.

Part of clarification is a focus on issues. Sev- eral federal judges have testified to argument's importance in this regard.26 At least a majority of judges surveyed by the Federal Judicial Cen- ter favored oral argument in part because it "focuses the court's attention on the issues [and] provides the needed impetus to get the ,tough' thinking done efficiently." 7 The late Judge Frederick Hamley of the Ninth Circuit commented that judges found argument help- ful because of its "tendency to narrow and pin- point the question to be decided and the points of law to be reviewed," with "the exact point of disagreement which must be resolved" emerg- ing during argument.28 The Ninth Circuit

22. Drury. supra n. 8, at 38 (Table 26). 23. Marvel I, supra n. 9, at 79. 24. However, less than half the attorneys in federal appel-

late practice surveyed by the Federal Judicial Center felt oral argument the only way to inform judges effectively of fact s and issues in a case. Drury, supra n. 8, at 38 (Table 26).

25. Bright, supra n. 10, at 506. 26. See Commission, 2 HF.ARINCS: SECOND PHASE 1974-

1975 408, 826 (Washington, D.C.: 1975). 27. Sutcliffe, addendum to Goldman, supra n. 8, at 2

(1975). 28. Quoted at FIRST PHASE, supra n. 19, at 777.

346 Judicature Volume 65, Number 7 February, 1982

judges interviewed concurred. They noted ar- gument's function of narrowing issues, allow- ing judges to "determine what counsel thinks most salient," and permitting worthless argu- ments to be swept away.

Disposition. Both clarification and focus assist with disposition of a case; focus is essen- tial before the court can bring a case to resolu- tion. The argument process assists in this regard by setting some issues aside as peri- pheral, so that the judges can deal with the key issues more directly and quickly. By sharpen- ing judges' thinking, argument provides an "opportunity to formulate a judgment." Even if argument does not itself speed disposition, judges' preparation for it does so.

2 9

Improving assistance to judges. Before appel- late argument takes place, judges must engage in some communication, among themselves and with the attorneys who are to present argument, if argument is to be most helpful both to the court and the attorneys. A pre- argument conference of the judges can serve this purpose; it can result in questions to be asked to help guide argument in ways that will assist the judges without the attorney having to cover ground of little (or less) interest to them.

More helpful would be communication be- fore the argument session, where judges could indicate points from the briefs on which they wished lawyers to concentrate, those they wished developed further, and questions they wanted answered. Of course, judges need not pose all their questions prior to argument. They could, however, provide some guidance while reserving further questions for argument itself. Judges often object to such suggestions either because their heavy caseload makes it difficult to consider briefs or the record in advance or because they feel-it interferes with the adversary process. Yet argument would be more useful for the judges even if attorneys received questions-perhaps developed from staff attorneys' bench memoranda-only a

29. For examination of judges' preparation for argu- ment, see Wasby, Ora IArgument in the Ninth Circuit: The View from Bench and Bar, II GOLDEN GATE L. REV. 21, 74-78 (1981).

30. Marvell, supra n. 9, at 247. 31. Id. at 248.

Ninth Circuit judges agreed that

clarification was a salient function

of appellate argument.

couple of days before argument. A further and more extreme suggestion is to

hold argument after the judges have written and circulated a tentative opinion. Marvell made such a suggestion because of his concern about "the lack of communication back and forth between counsel and the court to iron out exactly what points interest the court so that the counsel can give information the court needs."3 0 A natural objection is that judges' views would tend to become frozen. However, if judges could keep their opinions tentative, such a procedure would certainly communi- cate to attorneys the issues the judges wanted addressed. To be effective, however, the proce- dure does require j udges'to put "a good deal of work into a case early, in time to tell counsel of their concerns and to give counsel a chance to prepare answers.'31

Assisting the lawyers Communication. Judges, we have noted, find that appellate argument assists them in estab- lishing communication with lawyers. Lawyers find it similarly helpful in establishing com- munication with judges. Argument provides a lawyer "the opportunity to discourse with the court, and to argue and discuss with the court,

or share ideas," as well as to get "points firmly lodged in the judicial mind." 3 2 For Ninth Cir- cuit attorneys, appellate argument "allows face-to-face contact between an attorney and the court," thus permitting a lawyer "to grap- ple with a mind which has already come to grips with the problem" in a case and work through problems bothering the judges.

Appellate argument also allows indirect com- munication of certain messages. If an attorney tells judges at argument that the attorney's cli- ent is present, j udges, who appreciate such can- dor, "understand that some of the things he says are for the benefit of the client, who came to hear them said." An important part of what is communicated at appellate argument is infor- mation. This includes "background details," material not covered in briefs, and information about cases decided since the briefs were filed. (Argument may also serve to warn lawyers that they should file supplemental briefs to provide more information on specific points.)

Lawyers also use appellate argument to per- suade judges. One senior circuit judge observed that it is the "forcefulness, preparation and dedication" of particular lawyers that made argument helpful. Part of persuasion for the lawyers was catching the judges' attention or "stimulat[ing] their minds into active thought processes." Another part was to "challenge the judges' concept of a case" and to make them "re-examine their positions."

Clarification and focus. Clarification is a particularly significant function of oral argu- ment for attorneys, just as it is for judges. Argument is "enormously beneficial in illum- inating.., precisely what the issues are as coun- sel sees them." 3 In addition, argument can "cure factual misapprehensions and legal mis- conceptions," "the two areas that can be met only by oral argument." 4

Also involved in clarification is the "oppor- tunity to explain seeming contradictions, in- consistencies or weaknesses in the client's posi- tion." When argument allows a lawyer to sense the court's problems with a case, the lawyer can "develop a new theory" to help resolve them. As roughly three-fifths of the attorneys sur- veyed by the Federal Judicial Center responded, oral argument "allows counsel to gauge the feelings of the judges and to couch his argu-

ments accordingly.'" The most crucial element involved in focus-

ing a case at argument is the direct emphasis that can be placed on the most important issues in the case: the lawyer can provide "the crystal- lized oral statement of the 'gut issue.' "36 Focus- ing may entail discarding certain issues as well as stressing others. When flaws in a lawyer's position are revealed at argument, the court does not have to deal with those matters. A lawyer may also use argument to "signal ... that one or more points in his brief are not well taken;" the judges, realizing that the points were included "to satisfy his client," can then "apply more attention to what he says about his important points" and the lawyer also gains "a little extra credit for his candor."

Oral argument's importance

Relative importance and significance. A large majority of both Ninth Circuit judges and law- yers felt oral argument not of equal impor- tance in all cases. Moreover, no Ninth Circuit appellate judge and only two district judges believed that all cases required the sameamount of argument time. Their position is like that of judges surveyed by the Federal Judicial Center, who stressed "varied sets of criteria" for deter- mining appropriate time-length for argument and indicated "that a case-by-case method is mandatory with an examination of issue com- plexity and nature of record and briefs as a starting point."

37

Ninth Circuit judges felt that complex cases -those with either legal or factual complexity or cases with multiple issues or multiple- defendant criminal cases-required more ex- tended argument. However, they noted only a few specific areas of law in which longer argument was thought necessary, although antitrust, patent and securities were mentioned by several judges.

Asked to estimate the proportion of cases where appellate argument was "significant," Ninth Circuit judges gave opinions ranging

32. FIRST PHASE, supra n. 19, at 66, 322. 33. I SECOND PHASE, supra n. 26, at 350. 34. FIRST PHASE, supra 1. 19, at 804. 35. Drury, supra n. 8, at 38 (Table 26). 36. FIRST PHASE, supra n. 19, at 794. 37. Sutcliffe, supra n. 27, at 1.

348 Judicature Volume 65, Number 7 February, 1982

Ninth Circuit lawyers primarily found

appellate argument most helpful in

complex or novel cases.

from five per cent to 85 per cent. However, only five judges gave estimates of over 10 per cent. Several judges commented specifically that argument was helpful in greater proportions of cases if criminal cases were excluded, be- cause so many of those cases were thought not to raise important issues. Several judges, how- ever, were especially sensitive about eliminat- ing oral argument in criminal appeals; they thought retaining it necessary for the appear- ance of justice. All the circuit judges and most district judges responding also thought oral

38. Like "significant," "determinative" was not further defined when tie question was asked. When a judge in- quired as to its meaning, the interviewer said he was inter- ested in cases in which oral argument made the judge change his mind or made the essential difference in the case.

39. Goldman, supra n. 8, at 8 (Table V). The only other categories where substantial proportions of circuit judges found oral argument essential were direct criminal appeals (38 per cent) and en banc cases previously heard by a panel (35 per cent). For the views of Ninth Circuit judges on.the latter, see Wasby, supra n. 29, at 69-71.

40. Drury, supra n. 8, at 22. 41. Inter-circuit differences in responses could be ex-

plained in part by inter-circuit differences in argument practices. Goldman, supra n. 8, at 20-21. The Second Cir- cuit had oral argument in every case, but decided a number of cases from the bench without opinion; the Fifth Circuit made "extensive use of truncated procedures," id. at 3, with "no oral argument" in a high percentageof cases; and the Sixth Circuit, by contrast, had retained a relatively traditional oral argument arrangement.

argument "determinative" 38 in at least some cases, but, as expected, the proportion of cases in which argument was thought determinative was much smaller than the proportion in which it was considered significant; most esti- mated the proportion of cases to be "relatively small" or "minimal."

Where most helpful? In what types of cases is appellate argument thought most helpful? In the Federal Judicial Center study, a majority of circuit judges thought oral argument "essen- tial" in "cases that involve matters of great pub- lic interest despite the absence of substantial legal issues" and in only one other category- cases involving the constitutionality of a state statute or state action. By contrast, in civil ap- peals based on sufficiency of the evidence, only nine per cent thought argument essential.3 9

In the present study, Ninth Circuit judges defined helpfulness in terms of both legal sub- ject-matter and case characteristics. All but a couple of the judges stressed that appellate oral argument helped most in government regula- tion cases, particularly those involving new statutes or new administrative agencies. No judge found appellate argument more helpful in criminal appeals. Ninth Circuit lawyers primarily found appellate argument most help- ful when cases were complex or novel. They cited "novel or undeveloped legal issues," "issues of first impression," or "changing fields of law," as well as "sensitive, compli- cated, political issues" where a lawyer's views tended to differ from prevailing judicial sen- timent or where a lawyer was trying to move the law in a new direction.

Lawyers from the Second, Fifth, and Sixth Circuits considered oral argument essential in "cases which involve matters of great public interest (despite the absence of substantial legal issues) [and].cases involving the constitu- tionality of a state statute or a state action.''40 Half of the Sixth Circuit lawyers and a clear majority of those from the Second Circuit also thought oral argument essential in direct crim- inal appeals.4 Generally, lawyers were more likely than judges to find appellate argument essential than were judges, although "the essentiality of oral argument varies from case- type to case-type for [both] judges and lawyers, with order of preference almost the same from

the perspective of bench and bar."4 2

Where least helpful? Ninth Circuit judges tended to find argument least helpful in cases where the circuit had controlling precedent. Resolution of such cases was "largely mechan- ical." Otherwise, they found argument least helpful in "frivolous cases" or "factual, run- of-the-mill" cases. Not surprising in view of their other comments, argument commonly was felt least helpful in criminal cases. The lawyers also suggested that argument was least helpful in cases where briefs were short and the issue simple (a simple fact pattern), particu- larly if the law were "static." However, in a comment counter to the typical views, one attorney found oral argument not helpful "when the lawyer was trying to overturn old legal principles and establish new rules of law." Such matters, he believed, were best argued in the briefs. 3

Some judges said oral argument was not needed when briefs are adequate and "address the issues and are cogent" or when judges and lawyers agree as to what the principal argu- ment is. Thus, ironically, for these judges, good briefing makes argument of less help. Others thought a lawyer might make his point better orally when briefs were poor, but some colleagues felt poor briefs usually meant poor argument.

Most judges, however, focused on lawyers' deficiencies at argument; lawyers agreed that deficiencies in attorney skills detracted from oral argument. (Some attorneys also suggested that certain characteristics of judges interfere with the effectiveness of argument, for exam- ple, when judges were "not inclined to listen" or were "impatient," appearing to "have made up their minds." Only one circuit judge blamed judges-when they preempt argument time- for detracting from argument.)

Judges thought that in a number of cases lawyers' argument was of little help because the lawyers were "not well prepared," not "up to" argument, or were "not good on their feet when asked questions." Lawyers agree that "boring, incompetent presentations" by law- yers can cause damage. Just as important is that lawyers not "take too rigid a position" or adopt a stance they know is not valid-some- thing that will produce a loss of credibility.

Attorneys may not make most effective

use of appellate argument because so

few of them have tried appellate cases.

Judges noted and lawyers also frequently mentioned as less than helpful situations in which attorneys read their presentations or "simply repeated the briefs." Recitation of facts not woven into the law were also thought not helpful. Lawyers who made speeches, en- gaged in fancy rhetoric, or made "impassioned jury pleas to an appellate judge" were also thought ineffective. However, comments about the need for a "just result" in a case are thought appropriate if they are related to the law-not made in isolation from the law.

Attorneys may not make most effective use of appellate argument because relatively few of them have tried appellate cases. Still fewer have handled appeals in the federal courts. The skills of a trial lawyer and an appellate attor- ney can differ markedly, and attorney speciali- zation decreases the likelihood that an indi- vidual attorney will possess both. Ability to make an effective jury argument is not the same as being able to focus succinctly on often rapid-fire questions from a "hot" bench of three appellate judges, well-prepared from

42. Id. at 8-10. 43. See also comments by Hruska Commission Execu-

tive Director A. Leo Levin, FIRST PHASE, supra n. 19, at 503-504.

350 Judicature Volume 65, Number 7 February, 1982

having read the briefs. A Federal Judicial Center survey of lawyer

competence casts some light on types of law- yers judges think least effective in appellate argument. A majority "believe there is a seri- ous problem among lawyers employed by state or local governments," but less than 10 per cent thought such a problem existed among "pub- lic or community defenders, Justice Depart- ment lawyers other than those in U.S. attor- neys' offices and on strike forces, and private practitioners representing corporate clients in civil cases."I' Age, size of a lawyer's office, pre- vious courtroom experience, and a lawyer's educational background were all found not to be related to judges' ratings.

Curtailing and eliminating oral argument The Hruska Commission stated in 1975 that "to mandate oral argument in every case would clearly be unwarranted." The Commission also thought it inappropriate to ignore "risks to the process of appellate adjudication inher- ent in too-ready a denial of the opportunity to present a litigant's case." 45 At about the same time, the Advisory Council on Appellate Jus- tice recommended that "oral argument should be allowed in most cases" but also conceded "it may be curtailed or eliminated in certain instances."4 6 The American Bar Association's position was most direct. In 1974, the ABA's House of Delegates opposed "the rules of cer- tain United States courts of appeals which drastically curtail or entirely eliminate oral argument in a substantial proportion of non- frivolous appeals...'47

Federal Judicial Center surveys show agree- ment between judges and lawyers on limiting oral argument but definite disagreement on situations in which it might be eliminated. All circuitjudges found it acceptable to limit argu-

44. Partridge and Bermant, THE QUALITY OF ADVOCACY IN THE FEDERAL COURTS 25 (Washington, D.C.: Federal Judicial Center, 1978).

45. STRUCTURE AND INTERNAL PROCEDURE, supra n. 2, at 107.

46. Advisory Council on Appellate Justice, Recommen- dations. summarized in 7 THIRD BRANCH (November 1975).

47. See 60 A.B.A.J. 1214 (1974). '18. Goldman, supra n. 8, at 13 (Table 11). '19. Id. at 5; id at 13 (Table IlI): Drury, supra n. 8, at 19

(Table 13). 50. Goldman, supra n. 8, at 7a (Table IV). 51. FIRST PHASE, supra n. 19. at 932.

ment to 15-20 minutes per side and over 98 per cent of the lawyers agreed. 8 Continuing their agreement, both judges and lawyers were less willing to limit oral argument to 15-20 min- utes per side and to deny argument completely when the reason was "avoidance of extreme delay" than they were to do so either when an appeal was close to "frivolous" or where clear issues could be decided by circuit precedent.

Moreover, "approximately 90 per cent of the judges recognized occasions when elimination of oral argument is an acceptable procedure." Eighty-eight per cent of the circuit judges agreed that denying oral argument was "ever acceptable." However, the percentages of law- yers agreeing with such a proposition ranged from 84 per cent (Fifth Circuit) to only 67 per cent (Second Circuit). 9

Roughly 95 per cent of judges were willing either to limit or eliminate oral argument in frivolous cases, and similarly high percentages were willing to do so in cases governed by precedent. When the reason was to avoid ex- treme delay, the proportions declined (86 per cent for limiting a rgument, only 62 per cent for denying it).50 Lawyers showed a similar pattern of differences between case types, with ranking parallel to the judges'. By comparison with the judges, however, proportionately far more law- yers objected to eliminating argument than were willing to accede to time limitations.

Lawyers' objections to time limits on argu- ment can be seen in the Hruska Commission testimony of Moses Lasky, "dean" of Ninth Cir- cuit appellate attorneys. Lasky argued against any "official limitation on the time for argu- ments." Arguments, he felt, should take as much time as necessary for the judges "to squeeze all the values out of it that they can get out." Endless argument would not be the re- sult, said Lasky, citing the comment attributed to Abe Lincoln: "When asked how long should a man's legs be, he replied, 'Long enough to reach the ground.' " Some arguments would take no longer than 15 minutes, while some might profitably extend for hours.5

A clear majority of judges in the Federal Judicial Center survey saw oral argument as dispensable in two types of cases: prisoner peti- tions seeking alteration of prison conditions, and collateral attacks on federal and state con- victions. Almost half the judges also thought

oral argument could be eliminated in suffi- ciency-of-evidence cases. However, only seven per cent of circuit judges thought that courts could dispense with argument in "cases which involve matters of great public interest despite the absence of substantial legal issues.

'5 2

Not surprisingly, a greater proportion of judges than attorneys thought oral argument was dispensable for each type of case."3 In no case category did a majority of attorneys agree that oral argument was dispensable, although the proportion reached 30 per cent for chal- lenges to prison conditions and diversity-of- citizenship cases raising only state law ques- tions. 54 Furthermore, faced with limitations on traditional procedures, including argument, lawyers were less willing to accept limitations -"to the extent that they accept [them] at all"-for "administrative reasons" than for "substantive legal reasons." 55

All Ninth Circuit circuit and district judges interviewed believed that oral argument could be eliminated in some cases. Four of 12 circuit judges thought, however, that eliminating oral argument would not "assist the court in com- pleting its business." Despite the repeated con- cerns about the need to allow argument in criminal cases for the sake of the appearance of justice, criminal cases were most frequently mentioned as the type where argument could be eliminated. However, some judges distin- guished between direct criminal appeals, in which they were reluctant to eliminate argu- ment, and habeas corpus cases, where they would do so, particularly in pro se appeals.

At least somejudges found some civil cases- particularly simple ones-to require "no oral argument," especially if all members of a panel agreed that all problems were already pre- sented in the briefs. Even if a case contained more than one issue, argument might not be necessary if all issues were simple. Some judges also did not find argument helpful in adminis- trative agency cases, where their task was a limited review of the record. Similarly, argu- ment was not thought to aid the judges in agency cases involving the "abuse of discre- tion" standard.

Only a bare majority of Ninth Circuit attor- neys agreed that the court could dispense with argument in even some cases. Other than an occasional mention of criminal cases and a

Appellate argument is in no danger of

being extinguished as a significant part of appellate practice.

suggestion of cases involving ineffective coun- sel or misjoinder of offenses, lawyers seldom mentioned specific subject-matter areas for eliminating oral argument. They instead fo- cused on cases where "it is perfectly obvious how it would go," and noted as well cases that had been dispositively handled by the circuit, particularly if the briefs indicated agreement on the issues.

Oral argument v. written opinion Reduction or elimination of oral argument is only one way of reducing appellate court work- loads. Both judges and lawyers in the Federal Judicial Center surveys were more willing to accept limitations on oral argument than to approve limitations on written opinions. How- ever, judges, faced with a choice between argu- ment and full written opinions, clearly pre- ferred retaining argument and making greater use of memorandum opinions or "reasoned

52. Goldman, supra n. 8, at I 1 (Table IV). 53. Drury, supra n. 8. at 16; Goldman, supra n. 8, at 12. 54. Drury, supra n. 8, at 24 (Table 16). The differences

among the three circuits were less severe for judgments about dispensal)ility of argument than for judgments that argument was essential. However, "in the Second and Sixth Circuits, where oral argument is generally allowed, the idea that oral argument should always be accorded unless the appeal is frivolous received the greatest sup- port." Id. at '17.

55. Id. at 19.

352 Judicature Volume 65, Number 7 February, 1982

oral disposition" in most categories of cases. A majority of judges also agreed on the impor- tance of issuing at least memoranda, so the courts "do not give the appearance to litigants of acting arbitrarily." However, only one-third of the circuit judges thought that "the absence of a reasoned disposition" would provide "no guidance to.. .district judges or the bar in fu- ture cases."56 Conversely, in terms of the courts' legitimacy, "nearly half the circuit judges agreed that in the absence of a reasoned disposi- tion, members of the bar may infer that the court has acted arbitrarily, yet little more than a quarter of the district judges concurred."57

Fifty-six per cent of attorneys from the Sec- ond Circuit preferred oral argument and mem- orandum opinions or reasoned oral disposi- tion rather than full opinion and limited or no oral argument, a preference consistent with practice in their circuit. Attorneys from the Fifth and Sixth Circuits had the reverse prefer- ence. 58 Ninth Circuit attorneys in the present study were closely divided in their preferences.5 9

Among those preferring oral argument, one attorney found "bad results without it" but thought written opinions were "needed for de- velopment of the law." The value of a written opinion, said another attorney, was the "proper check" placed on "the court's superficiality and discretion;" an opinion forced the court to express its views in ways "credible to the bar."

Willingness to accept delay in order to obtain certain practices is a measure of support for those practices. A "large proportion" of judges surveyed by the Federal Judicial Center felt that retaining both argument and written opinions was worth waiting longer than the current time to disposition. Judges were, however, "more concerned about avoiding extreme delay" than were attorneys. 60 Lawyers also wanted both argument and written opinions even if more time would be consumed in the process.

56. Goldman, supra n. 8. at 12, 17 (Table IX). 57. Id. at 20 (Table XII). 58. Drury, supra n. 8, at 26 (Table 17). 59. The judges were not asked about their preference

between oral argument and full written opinions. 60. Goldman, supra n. 8, at 7. 14. 61. Drury, supra n. 8, at 32, 34. 62. Id. at 33 (Table 22) and 34 (Table 24). See also id. at

35-36 (Table 25), indicating the median numberof months attorneys perceive required to obtain a final disposition and median number of months they are willing to wait to have both oral argument and written opinion.

Indeed, "the speed with which opinions are rendered is a matter of relatively low priority" for the attorneys; few felt that eliminating argument or limiting opinions is "the most acceptable way to avoid long delays in the court's calendar when the docket becomes crowded."61 In no category of cases were more than one-fifth of the attorneys willing to give up both oral argument and written opinions to reduce time to disposition. Conversely, slightly over three-fourths would accept longer dispo- sition times to obtain traditional practices.6"

Conclusion Although trial advocacy has received more at- tention than appellate argument in recent years, the latter also is significant and deserves attention. Efforts by both federal and state ap- pellate courts to "streamline" proceedings re- quire an understanding of the functions appel- late oral argument is expected to perform. Lawyers need a better grasp of judges' views concerning the types of cases for which reduced oral argument or elimination of argument is considered appropriate and vice versa. The view of Ninth Circuit judges and lawyers and data from Federal Judicial Center surveys should make clear that the range of opinions about appellate argument is wide. It should also be clear that appellate oral argument is expected, by both attorneys and judges, to serve multiple functions.

Beneath all these views runs a recurrent theme of tension between perspectives, a ten- sion that shows little sign of abating. On the one hand is the desire to maintain a practice that is not merely an "amenity" but is also thought to have considerable importance for both appellate judges and appellate lawyers. On the other hand is a feeling of the need to adjust to substantial appellate caseloads by recognizing that different types of cases can be treated differently. Despite "inroads" some feel have been made in appellate argument, neither element in the tension has ousted the other, and appellate argument is in no danger of being extinguished as a significant part of appellate practice. 0

STEPHEN L. WASBY is a professor of political science at the State University of New York at Albany