(This is the fourth article in a four-part series looking at the declines in oral arguments.)

Oral arguments have an intangible value that lawyers and judges seem to understand instinctively. At best, they're conversations—starting in midsentence with many interruptions—that mostly seem mutually useful.

“I love doing oral arguments,” said Michael Terry of Bondurant, Mixson & Elmore.
Terry does them often and successfully in state and federal courts. On a good day, he has the feeling the judges find them helpful.

“It's not that the court really needs our help sometimes; it's more that the court really wants to know our positions,” Terry said.

Robert Highsmith Jr. of Holland & Knight said he generally asks for oral arguments and gets them, although he noted his cases tend to involve public policy or other broad-based issues.
“I think oral argument is crucial to courts' understanding of a case,” Highsmith said. “And I think courts enjoy it.”

Laurie Webb Daniel, chair of Holland & Knight's national appellate team and leader of the firm's Atlanta litigation practice, said oral arguments have another use that is not usually noted in the discussions about their decline: They can influence settlements.

A lot of cases settle after oral arguments, Daniel said. If that happens quickly, it still reduces the court's workload by eliminating the need to write an opinion.

Especially now with oral arguments live-streamed and available afterward by video on Georgia appellate court websites and with audio recordings on federal court websites, parties are looking increasingly at oral arguments. “It's reading tea leaves, I know,” Daniel said. “But I will tell you based on my experience, most times you can get a sense of how it's going to go.”

Of course, it's not always possible to tell how the judges are leaning, she added. “But most times—particularly if you get hostile questioning for one of the parties—most times that party does not win,” Daniel said.

An important concern about the decline in the use of oral arguments is the limiting of opportunity for experience by younger lawyers. Daniel said a way to address that is by having younger associates volunteer for court appointed federal cases. In those situations, the judges will grant oral arguments.

“And they will thank you for doing it,” Daniel said.

Also, firms can help prepare younger lawyers by practicing with mooting cases and staging mock arguments. Daniel said she does that herself.

“Anyone going into an appellate argument should do moot court,” she said. “If you're going to have an argument, you ought to practice.”

But, from what lawyers say, the experience of arguing live before a bench is something that can't quite be replicated. Criminal defense attorney J. Scott Key of Miller & Key in McDonough has made many appearances before the Georgia Supreme Court. After one of them a couple of years ago, he joked in a tweet linking his photo and a story in the Daily Report, “That was me on the receiving end of the Socratic method.”

Here's how he described the experience at the time for a reporter: “Before I do it, I always feel like I'm going to be sick. Afterward, I think it's the most fun thing I've ever done.”