Oral Argument: Does It Matter?

Abstract

lawyers that much time any more. In fact, in many cases, we don’t give them any time. I detect among judges a growing disdain for oral arguments. We don’t look forward to them as much as we used to. They often are seen as an extra and unnecessary step in the proceedings. Why is that? Why are we hearing fewer oral arguments for shorter times? In my own court, the First District Illinois Appellate Court, the numbers of oral arguments have been going down steadily, while the numbers of cases we decide have been going up slightly. In 1995, our district heard 938 oral arguments. In 2000, we heard 695 oral arguments—243 fewer. About twentyfive percent of the cases we decide are orally argued these days. I believe our numbers are fairly typical in intermediate courts around the country. What’s going on? Is it because judges think arguments are unworthy of their time—too many no-brainer cases? Or are the briefs so good we just don’t need any more argument? Or is it because we don’t have many Daniel Websters any more? Appellate judges will tell you sitting up there and listening to lawyers read prepared talks or their briefs is not our idea of a great time. I think mostly it comes down to numbers. Our job is to decide cases, and we have a lot of cases. Oral argument slows things up. We begin to fall behind. That’s not good. People grumble. So we begin a culling-out process. We decide the easy and clear cases without argument. Appeals that ask us to overturn a trial judge’s findings of fact usually don’t require argument, whether the case is civil or criminal. The same is true for attempts to overturn jury verdicts on the evidence. We tend to schedule argument on the cases that contain interesting or troublesome legal issues. We look for cases of first impression, or cases where the stakes are high—in dollars, in the validity of statutes, in human confinement. You would think this selection process would heighten the significance of oral argument for judges. Maybe it does, but I am not sure it works that way. When I was asked to address this topic—the significance of oral argument—I decided to do some research. I found a lot of articles by judges and lawyers on how to make effective oral arguments, but there is very little on whether the arguments matter or why they should. We do have some anecdotal evidence, and I have heard that the plural of anecdote is data, but we don’t even have much in the way of anecdote. Let me briefly review the literature for you, although