Is Oral Argument Really Necessary?
A debate of sorts is brewing between CrimLaw and HOWT on the propriety and usefulness of oral argument in appellate practice. CrimLaw argues that oral argument has become a badge of prestige for the lawyers called to argue, but is misplaced because "an informed, intelligent, and full argument is better made on paper." While agreeing with the latter sentiment, HOWT responds that briefs do sometimes leaved unanswered questions. ALP plans to chime in, but wants info on the history of appellate practice.
Based on my own experience, which includes stints as law clerk and staff counsel on a state appellate court, oral argument rarely makes a difference in the ultimate outcome. A well written brief can and does generally provide the best weapon in an appeal -- or, in fact in any proceeding where issues of law are determined. In other words, I much prefer the typical federal court motions practice in which motions are mostly decided on the briefs, with hearings set if the judge so desires.
Of course, I say that as someone wholly confident in my ability to write that well written brief necessary to prevail in the face of any oral presentation. No doubt, there are many appellate advocates who place similar faith in their ability to overcome the best written brief with their face-to-face presentation. In other words, this is a debate in which few have unbiased opinions.
However, theoretical discussions aside, the more important preference to be considered is that of the judges. HOWT guesses that oral argument makes a difference in ten percent of the cases HOWT 's decides. My own opinion is that this percentage varies from court to court, and especially, from judge to judge. For some judges, a writing will be most persuasive; for others, the give and take of a dialog will take the day. If my panel includes judges who likes to have that dialog, I see no reason to disappoint. So my answer to the question of whether oral argument is necessary, is yes - if the judges want it.
I'll stand by that answer even if the reason the judges want the argument is to get them out of their offices for for a few hours. After all, "rarely" is not "never."
