September 10, 2010

A modest proposal

Myron Moskovitz, a law professor at Golden Gate University, has written a provocative opinion piece for the Los Angeles Daily Journal entitled “Abolish Oral Argument” [subscription required]. The article discusses what some might describe as “the dirty little secret” of California appellate advocacy—that oral argument is rarely effective in changing the outcome of an appeal due to California’s constitutional “90-day rule,” which requires all California’s appellate courts (including the California Supreme Court) to issue their opinions within 90 days of oral argument. As a consequence of that requirement, tentative opinions are generally already written by the time of oral argument, so that oral argument is mainly useful only for predicting the outcome based on “the tone, content, number, and target” of the justices’ questions.

At the same time, oral argument is disproportionately expensive as compared to other parts of the appellate process. As Professor Moskovitz aptly observes, “Lawyers spend a lot of time preparing for oral argument. They re-read the record, the briefs, and the cases. They try to anticipate questions, and they might even practice in moot courts. All this takes many billable hours—paid by their clients. . . . While oral argument is not useless, its benefits are too small to be worth the time justices spend on it, the lawyers’ amount of preparation, and especially the damage to clients’ pocketbooks.”

Professor Moskovitz urges that if oral argument is not abandoned, oral advocates should be given a copy of the draft opinion in advance of the argument, a practice currently followed by only a single appellate division (Fourth Dist., Div. Two). Appellate specialists have been singing that same song for years, but so far no other division in the state has been willing to adopt the practice, which is a shame, since it would allow oral advocates to focus on the issues of greatest concern to the justices and provide an honest shot at persuading them to reconsider the tentative outcome.

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