James Merritt Jr., Gray, Rust, St. Amand, Moffett & Brieske, LLP, Atlanta (Photo: John Disney/ALM)

(This is the second in a four-part series looking at the decline in oral arguments.)

James Merritt Jr., an associate at Gray, Rust, St. Amand, Moffett & Brieske, recently won a case at the Georgia Court of Appeals after making his first ever oral argument.

In nearly nine years in practice, Merritt said he has always wanted to make oral arguments on an appeal but had not had the opportunity. He said he had requested oral arguments eight times before and had been turned down. He finally got his first shot on the ninth try.
“It was an adrenaline rush,” said Merritt. “It was a great experience. Plus, I really thought we were right.”

The decline in oral arguments for federal courts is well-known and documented and has sparked concerned discussions between lawyers and judges. The situation is different for state courts, where statistics are not generally available on websites.

Upon the Daily Report's request, Georgia Court of Appeals Clerk Stephen Castlen shared a spreadsheet documenting the number of requests and grants for oral arguments since 2000. The number of requests has held fairly steady, ranging from 469 in 2000 to 447 in 2017. The number of oral arguments granted has dropped.

In 2000, the court heard 43 percent of the oral arguments requested. The percentage dropped every year until it reached a low of 22 percent in 2015. In January of 2016, the court expanded from nine members to 12. By the end of that year, the percentage of oral arguments granted bumped up to 30 percent. In 2017, the percentage increased to 36 percent.

The court provided another spreadsheet showing the total number of cases decided on the briefs alone compared to those decided with the benefit of oral argument—a set of facts more compatible with those available on federal courts. The totals show that the percentage of cases for which the judges have heard oral arguments has remained fairly steady, from 8 percent in 2000 to 7.5 percent in 2017. That lower figure puts the Georgia Court of Appeals about even with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

Statistics available on the U.S. Courts website show that, 20 years ago, 40 percent of all federal appeals were decided with the benefit or oral arguments, rather than on the briefs alone. By 2006, that percentage had dropped to 25 percent. By 2016, the most recent numbers available show the figure had dropped to 16 percent.

The circuits vary widely in their reliance on oral arguments. The Eleventh Circuit—which handles federal appeals for Alabama, Georgia and Florida—is among the lowest. The Eleventh Circuit heard oral arguments for 30 percent of its cases in 1996, 16 percent in 2006 and 7 percent in 2016.

The Georgia Supreme Court has a policy of accepting all requests for oral argument in cases it is reviewing. All the lawyers have to do is ask.

“If you request oral arguments, you will get oral arguments,” Chief Justice P. Harris Hines said in a recent interview. Hines said he thinks his court is hearing more oral arguments than ever, although he hinted that could change with the ever-mounting caseload.

“I don't know what we'll have to do if we continue to have the increases,” Hines said. “But right now, if you want oral argument on a case in the Supreme Court of Georgia, you're gonna get it.”

The Georgia Court of Appeals hears oral arguments at the discretion of the judges—who this year took on a sizable addition to their workload by adding divorce, property and other cases that once went straight to the Georgia Supreme Court. That's the court where Merritt recalled trying eight times before to be heard.

Asked whether he has noticed a decline in oral arguments in general, Meritt's more senior partner at Gray, Rust, St. Amand, Moffett & Brieske, Matthew Moffett, said, “Absolutely.”

Moffett, who handles insurance defense, was admitted to the State Bar of Georgia in 1990 after graduating from Emory University School of Law.

“When I started practicing, you could get oral arguments,” Moffett said. “My first five years, I did this all the time. Every slip and fall summary judgment got appealed.”

Moffett said he always thought it helped his case. “You can move the emotions of the court and frame the case in a way that a brief is not capable of doing,” he said.

The key, he said, is to make it count.

“By the time I argue, it's like the brief is in a foreign language,” he said. “Why go argue what I briefed? That's a waste of time. Argue something shorter, more impactful, more persuasive.”

James Merritt Jr., Gray, Rust, St. Amand, Moffett & Brieske, LLP, Atlanta (Photo: John Disney/ALM)

(This is the second in a four-part series looking at the decline in oral arguments.)

James Merritt Jr., an associate at Gray, Rust, St. Amand, Moffett & Brieske, recently won a case at the Georgia Court of Appeals after making his first ever oral argument.

In nearly nine years in practice, Merritt said he has always wanted to make oral arguments on an appeal but had not had the opportunity. He said he had requested oral arguments eight times before and had been turned down. He finally got his first shot on the ninth try.
“It was an adrenaline rush,” said Merritt. “It was a great experience. Plus, I really thought we were right.”

The decline in oral arguments for federal courts is well-known and documented and has sparked concerned discussions between lawyers and judges. The situation is different for state courts, where statistics are not generally available on websites.

Upon the Daily Report's request, Georgia Court of Appeals Clerk Stephen Castlen shared a spreadsheet documenting the number of requests and grants for oral arguments since 2000. The number of requests has held fairly steady, ranging from 469 in 2000 to 447 in 2017. The number of oral arguments granted has dropped.

In 2000, the court heard 43 percent of the oral arguments requested. The percentage dropped every year until it reached a low of 22 percent in 2015. In January of 2016, the court expanded from nine members to 12. By the end of that year, the percentage of oral arguments granted bumped up to 30 percent. In 2017, the percentage increased to 36 percent.

The court provided another spreadsheet showing the total number of cases decided on the briefs alone compared to those decided with the benefit of oral argument—a set of facts more compatible with those available on federal courts. The totals show that the percentage of cases for which the judges have heard oral arguments has remained fairly steady, from 8 percent in 2000 to 7.5 percent in 2017. That lower figure puts the Georgia Court of Appeals about even with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta.

Statistics available on the U.S. Courts website show that, 20 years ago, 40 percent of all federal appeals were decided with the benefit or oral arguments, rather than on the briefs alone. By 2006, that percentage had dropped to 25 percent. By 2016, the most recent numbers available show the figure had dropped to 16 percent.

The circuits vary widely in their reliance on oral arguments. The Eleventh Circuit—which handles federal appeals for Alabama, Georgia and Florida—is among the lowest. The Eleventh Circuit heard oral arguments for 30 percent of its cases in 1996, 16 percent in 2006 and 7 percent in 2016.

The Georgia Supreme Court has a policy of accepting all requests for oral argument in cases it is reviewing. All the lawyers have to do is ask.

“If you request oral arguments, you will get oral arguments,” Chief Justice P. Harris Hines said in a recent interview. Hines said he thinks his court is hearing more oral arguments than ever, although he hinted that could change with the ever-mounting caseload.

“I don't know what we'll have to do if we continue to have the increases,” Hines said. “But right now, if you want oral argument on a case in the Supreme Court of Georgia, you're gonna get it.”

The Georgia Court of Appeals hears oral arguments at the discretion of the judges—who this year took on a sizable addition to their workload by adding divorce, property and other cases that once went straight to the Georgia Supreme Court. That's the court where Merritt recalled trying eight times before to be heard.

Asked whether he has noticed a decline in oral arguments in general, Meritt's more senior partner at Gray, Rust, St. Amand, Moffett & Brieske, Matthew Moffett, said, “Absolutely.”

Moffett, who handles insurance defense, was admitted to the State Bar of Georgia in 1990 after graduating from Emory University School of Law.

“When I started practicing, you could get oral arguments,” Moffett said. “My first five years, I did this all the time. Every slip and fall summary judgment got appealed.”

Moffett said he always thought it helped his case. “You can move the emotions of the court and frame the case in a way that a brief is not capable of doing,” he said.

The key, he said, is to make it count.

“By the time I argue, it's like the brief is in a foreign language,” he said. “Why go argue what I briefed? That's a waste of time. Argue something shorter, more impactful, more persuasive.”