Judge William Pryor, U.S. Court of Appeals for the Eleventh Circuit Judge William Pryor, U.S. Court of Appeals for the Eleventh Circuit (Photo: John Disney/ ALM)

(This is the first in a four-part series.)

Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit recently took on a topic that has long concerned appellate lawyers—the declining use of oral arguments to decide cases.

Hearing more oral argument—rather than relying solely on the briefs from lawyers on both sides—“would only delay decisions that should be speedy,” Pryor wrote in a Nov. 29 New York Times opinion piece.

The discussion of oral arguments was a secondary point in Pryor's article, but he touched on a tension that has been developing between lawyers and judges for years.

The decline in the use of oral arguments is dramatic and documented—at least for the federal appeals courts. Statistics available on the U.S. Courts website show that, 20 years ago, 40 percent of all cases were decided with the benefit or oral arguments, rather than on the briefs alone. By 2006, that percentage had dropped to 25 percent. In 2016, the most recent numbers available show the figure had dropped to 16 percent.

The circuits vary widely in their reliance on oral arguments. Pryor's court—the Eleventh Circuit in Atlanta, which handles 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.

Pryor's purpose in the New York Times article was to oppose a conservative law professor's plan to overturn President Barack Obama's judicial legacy by drastically expanding the number of judges on federal courts, adding hundreds more.

For example, Pryor said, Northwestern University law professor Steven Calabresi's proposal would multiply the Eleventh Circuit from 12 judges to 56. Pryor said that would turn colleagues who need to make decisions congenially into people who barely know each other and demote an attractive appointment to a part-time job. The opportunity to allow courts to hear more oral arguments was one of Calabresi's selling points.

“None of this is true,” Pryor said. Furthermore, the judge wrote, skipping the step of having lawyers appear before the bench to plead their cases in person saves their clients' money.
“Fewer oral arguments mean lower attorneys' fees for litigants,” Pryor said.

Ouch. That might sting a bit for the lawyers who make their living trying to persuade courts to overturn or uphold verdicts—and who generally believe they are good at it when given a chance.

Consider a white paper with this title: “Wither Oral Argument? The American Academy of Appellate Lawyers Say Let's Resurrect It!”

The group sent that 47-page report to U.S. Supreme Court Chief Justice John Roberts Jr. as presiding officer of the U.S. Judicial Conference in August.

“The Academy puts great value on oral argument,” the report said. “Oral argument is, after all, the only time where a party and its advocate can interact with the decision-maker. It is a time when the court's views on the issues are on display for the public and for clients, and counsel has the opportunity to address potential misconceptions or overlooked facts. In that manner, oral argument is the most tangible manifestation of the critical role that appellate courts play in the resolution of public and private disputes traversing our legal system.”

Former Georgia Supreme Court Chief Justice Leah Ward Sears, now a litigation partner with Smith, Gambrell & Russell in Atlanta, is one of the appellate lawyers who helped draft the white paper on oral arguments. She told the Daily Report in a recent interview that she agrees briefing is the most important part and that oral arguments only change the outcome in maybe five percent of cases. But those facts understate the value.

“It can change how you look at a case,” Sears said. “It helps the judges shape the opinion.”
Arguments can lead to “a more narrow ruling as opposed to a broader ruling,” for example.
And it is possible that oral arguments can flip the majority view, she added.

“I can remember being in the robing room after oral arguments when judges would say, 'Wow. I thought it ought to go this way, but now I see it that way.' It happens,” she said.
“My advice is, if you have an oral argument opportunity, take it,” Sears said.
Those opportunities increase outside the federal court system.

“Remember by far most of the litigation goes on in the state courts,” Sears said.
But that's another story.

Judge William Pryor, U.S. Court of Appeals for the Eleventh Circuit Judge William Pryor, U.S. Court of Appeals for the Eleventh Circuit (Photo: John Disney/ ALM)

(This is the first in a four-part series.)

Judge William Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit recently took on a topic that has long concerned appellate lawyers—the declining use of oral arguments to decide cases.

Hearing more oral argument—rather than relying solely on the briefs from lawyers on both sides—“would only delay decisions that should be speedy,” Pryor wrote in a Nov. 29 New York Times opinion piece.

The discussion of oral arguments was a secondary point in Pryor's article, but he touched on a tension that has been developing between lawyers and judges for years.

The decline in the use of oral arguments is dramatic and documented—at least for the federal appeals courts. Statistics available on the U.S. Courts website show that, 20 years ago, 40 percent of all cases were decided with the benefit or oral arguments, rather than on the briefs alone. By 2006, that percentage had dropped to 25 percent. In 2016, the most recent numbers available show the figure had dropped to 16 percent.

The circuits vary widely in their reliance on oral arguments. Pryor's court—the Eleventh Circuit in Atlanta, which handles 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.

Pryor's purpose in the New York Times article was to oppose a conservative law professor's plan to overturn President Barack Obama's judicial legacy by drastically expanding the number of judges on federal courts, adding hundreds more.

For example, Pryor said, Northwestern University law professor Steven Calabresi's proposal would multiply the Eleventh Circuit from 12 judges to 56. Pryor said that would turn colleagues who need to make decisions congenially into people who barely know each other and demote an attractive appointment to a part-time job. The opportunity to allow courts to hear more oral arguments was one of Calabresi's selling points.

“None of this is true,” Pryor said. Furthermore, the judge wrote, skipping the step of having lawyers appear before the bench to plead their cases in person saves their clients' money.
“Fewer oral arguments mean lower attorneys' fees for litigants,” Pryor said.

Ouch. That might sting a bit for the lawyers who make their living trying to persuade courts to overturn or uphold verdicts—and who generally believe they are good at it when given a chance.

Consider a white paper with this title: “Wither Oral Argument? The American Academy of Appellate Lawyers Say Let's Resurrect It!”

The group sent that 47-page report to U.S. Supreme Court Chief Justice John Roberts Jr. as presiding officer of the U.S. Judicial Conference in August.

“The Academy puts great value on oral argument,” the report said. “Oral argument is, after all, the only time where a party and its advocate can interact with the decision-maker. It is a time when the court's views on the issues are on display for the public and for clients, and counsel has the opportunity to address potential misconceptions or overlooked facts. In that manner, oral argument is the most tangible manifestation of the critical role that appellate courts play in the resolution of public and private disputes traversing our legal system.”

Former Georgia Supreme Court Chief Justice Leah Ward Sears, now a litigation partner with Smith, Gambrell & Russell in Atlanta, is one of the appellate lawyers who helped draft the white paper on oral arguments. She told the Daily Report in a recent interview that she agrees briefing is the most important part and that oral arguments only change the outcome in maybe five percent of cases. But those facts understate the value.

“It can change how you look at a case,” Sears said. “It helps the judges shape the opinion.”
Arguments can lead to “a more narrow ruling as opposed to a broader ruling,” for example.
And it is possible that oral arguments can flip the majority view, she added.

“I can remember being in the robing room after oral arguments when judges would say, 'Wow. I thought it ought to go this way, but now I see it that way.' It happens,” she said.
“My advice is, if you have an oral argument opportunity, take it,” Sears said.
Those opportunities increase outside the federal court system.

“Remember by far most of the litigation goes on in the state courts,” Sears said.
But that's another story.