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December 28, 2017Download PDF

A Short Digression on Oral Argument

For most non-members of the bar, the word “attorney” conjures an image of a skilled orator delivering a prescient and impassioned speech in the courtroom, a dramatic oration that swings the big case in the favor of his or her client. (Perhaps this is optimistic, and if your own visual is a placard of Dewey, Cheatem, & Howe, or a group of besuited bottom-of-the-ocean dwellers fulfilling the proverbial “good start,” then please allow me this temporary indulgence). Perry Mason. Atticus Finch. Jack McCoy. In the real world, perhaps Johnny Cochran or, for the more historically inclined, Clarence Darrow or William Jennings Bryan.

The reality, at least for the civil litigator, is often very different, and for class action litigators drastically so. Because class cases rarely go to trial, the pomp and circumstance of jury presentations is rare. The “if the glove don’t fit, you must acquit” moments most often occur in the form of MS Word hammerings, iterations of briefs to be filed in writing with the court. Oftentimes in the trial courts, depending on the jurisdiction, motions are decided “on submission” or “on the papers,” meaning without argument altogether. This is true of minor, routine motions, as well as make-or-break motions like motions to dismiss, for summary judgment, or for class certification.

This is not necessarily a bad thing. Oral argument is very different from opening and closing arguments, in that the audience for such an argument is a judge, rather than a jury, where passion and eloquence, though beneficial, generally play second fiddle to a firm grasp of the facts of the case and the relevant governing law. Much of this can be addressed in the parties’ competing briefs, leaving little new ground to trod through argument itself. Particularly in the absence of a “hot” bench, these arguments can consist of little more than a rote recitation of the points already made at length in writing. In such a case, the argument is a waste of time for the litigants and the court.

On the other hand, oral argument can provide the parties a prime “gap-filling” opportunity. When the two sides craft the arguments for their briefs, they necessarily try to tackle the points that will be most important for the court in deciding the motion. But especially in a complicated case, where myriad arguments and facts must be pared down to a digestible size (frequently mandated by page-limitations imposed by local rule in the jurisdiction) the parties cannot always accurately predict what the court will find most compelling, or most relevant, to a given issue or issues. Oral argument gives those parties another chance to address these unanticipated concerns, the Rumsfeldian “unknown unknowns” that can sink a motion and, depending on the significance, the case. Most lawyers can recall at least one instance where, upon reading a judge’s ruling against them, have thought “I never even thought the court would be concerned with that particular point, and I had the evidence right here to address it!”

Oral arguments in civil litigation may never be glamorous, but I have a practical suggestion to make them more productive. Aside from the most routine, procedural motions, courts should hold oral argument on all motions. Prior to the oral argument date, the judge, upon reading the parties’ written submissions, would issue a brief, preliminary ruling on the requested relief, essentially limited to a “yay,” “nay,” or “undecided,” along with a bullet list of the issues over which the judge has the most concern, the questions that remain unanswered, and the lacking evidence that may sway that first impression. At the court’s discretion, it may even provide the parties questions in writing about the arguments made in their briefs. There are California state and federal courts that do essentially this, providing “tentative opinions” before oral argument, so that parties know where the court is inclined to go.

At argument, the parties could then deal specifically with the court’s most pressing concerns with an opportunity to prepare full-throated and satisfactory responses. This approach would make oral argument more productive and more focused (allowing them in many instances to be briefer), would provide the court with the fullest possible record upon which to make its decision, and would avoid the surprise “gotcha” rulings premised on a seemingly tangential issue, leading to an even greater expenditure of resources on a motion to reconsider or reargue, or an appeal. Of course, if the court was convinced that the problem was clear cut, and could or would not be swayed from its position, the argument could be stricken, eliminating arguments where the parties are simply rehashing old territory to the benefit of no one. Notably, this approach could be employed at the appellate level as well.

The utility to the court system and litigants in handling argument this way seems apparent. More information, and more focused information, is rarely a negative, but surprises can be. As the late Mr. Cochran might have said, “if the case isn’t clear, have the parties appear.”