September 16, 2010

Second District Court of Appeal Justices join the debate about the usefulness of oral argument

In today’s Daily Journal [subscription required], Presiding Justice Norman Epstein and Justice Richard Mosk of the Second District Court of Appeal have each responded to Professor Myron Moskovitz’s September 9 article entitled “Abolish Oral Argument,” which we discussed in this post. In that article, Professor Moskovitz argues that oral argument is generally not a useful exercise because the appellate courts have prepared a tentative opinion that is unlikely to change much in response to anything said at argument. In any event, he argues, if oral argument is retained, the appellate courts should adopt the practice of the Fourth District, Division Two in Riverside, and share their tentative opinions with counsel in advance of argument in order to focus the discussion.

We trust that no one will think the Professor’s remarks extend to the import of argument at the California Supreme Court. Some of us who have appeared in that can attest that argument can and not infrequently does shape the result in the court’s final opinions. We have seen that opinions contain direct references to points that were tangential or absent in the briefing, but that were front-and-center at argument. Even if the basic disposition in a tentative draft may not change after argument, important qualifications may result from argument. And, in today’s Daily Journal, Justice Epstein confirms our sense that the same can be true in the intermediate appellate courts as well.

Justice Epstein says that oral argument is “is an important part of appellate advocacy,” noting that courts commonly make substantive changes to draft opinions as a result of oral argument. In addition, it is sometimes the case that the panel is tentatively divided, or at least one panel member has “a nagging doubt” about the correctness of the opinion. Justice Epstein argues that, especially in those situations, oral argument is the last, best opportunity for counsel to address a critical point and demonstrate prejudicial error. Justice Epstein also notes, somewhat caustically, that if Professor Moskovitz believes oral argument is largely pointless, “his remedy is at hand: he can waive oral argument.”

For his part, Justice Mosk takes issue with Professor Moskovitz’s statement that his father, the late Supreme Court Justice Stanley Mosk, thought oral argument a waste of time. Justice Mosk asserts that his father never expressed that view to him. To the contrary, the elder Mosk said that “it had a decisive role in at least some of the cases.” Justice Mosk goes on to express his own view that oral argument matters because “[t]he oral advocate can bring to the attention of [justices who have not prepared the calendar memorandum] facts from the record and legal arguments that have not been highlighted in the calendar memorandum.” Justice Mosk continues, “Even when the justice has prepared the calendar memorandum, oral argument can provide material on issues that have been overlooked. Even if oral argument does not affect the result in a particular case, it can have a role in the content and scope of the opinion.” Like Justice Epstein, Justice Mosk is skeptical of the benefits of sharing tentative opinions with counsel in advance of oral argument, noting that “[s]ome suggest tentative rulings given to the parties just make oral argument more of an ‘empty ritual.’ Moreover, the questions of the justices often serve the function of a tentative decision provided the parties.”

No doubt this fascinating and useful debate will continue.

2 Responses to “Second District Court of Appeal Justices join the debate about the usefulness of oral argument”

  1. The issues of decisiveness and advocacy are not unimportant, but in my view the most important reason oral argument should not be abolished is not for the benefit of the attorneys, it is for the court. This is because the most important function of oral argument is to answer questions, elicit concessions, and clarify the parties’ positions or the composition of the record. In the absence of oral argument, which affords judges the opportunity to directly question the advocates and get immediate responses, the amount of letter briefing, petitions for rehearing, and repetitive appeals, will certainly go up.

  2. OA seems slightly more useful in civil cases than in criminal cases (unless it is a rare criminal case where the DCA invites counsel to argue a particular point). But it is only relative usefulness. I suspect this situation would continue until DCAs decide to adopt what 4/2 is doing and distribute pre-argument tentatives to counsel

Leave a Reply