June 23 , 2017
Oral advocacy is the foundation of the English legal system and was central to the American system of justice during its formative years. It is no surprise then that when most Americans are asked to imagine what happens when a case is appealed to a court of review, they are likely to describe an erudite attorney making an eloquent plea for justice before a panel of judges who are thoroughly familiar with the case and determined to test the lawyer’s arguments with probing and insightful questions.
Such scenes may still be commonplace in courts of last resort. They are increasingly rare in the intermediate appellate courts of Illinois. As I recently discussed in a presentation to the Appellate Court Conference, oral argument in our appellate court has become the exception rather than the rule.
Data compiled by the clerks of the five appellate court districts reveals that in 2016, only 735 of the 3,783 appeals disposed of through Rule 23 order or published opinion – a mere 19.4% – were decided following oral argument. In 2011, by contrast, 903 cases were decided after oral argument. In 2006, oral argument was held in 1,314 cases. In 1996, the number was 1,608. Complete statistics are set forth in a table appended to this article. The overall trend is clear and downward.
The statistics may be even more stark depending on where an appeal is heard. In the Fifth District, litigants are still more likely than not to receive the benefit of oral argument in cases decided by Rule 23 order or published opinion. Last year, that court, which has seven judges, conducted oral argument in 154 of 293 (52.6%) such cases. It, however, is a clear outlier. Consider the First District. Its 24 judges heard oral arguments in just 182 of the 1881 appeals (9.7%) it disposed of through Rule 23 orders or opinions. The numbers in the Second District were somewhat higher than in the First District, with oral argument being held in 19.5% of the 554 cases its nine members decided by Rule 23 order or opinion. The rates in the Third and Fourth Districts were, in turn, higher than in the Second District. The seven judges in the Third District heard oral argument in 26.5% of the 510 appeals decided by Rule 23 order or opinion, while the Fourth District’s seven judges held oral argument in 28.6% of the 545 such cases it decided. These figures are greater than in the First District, to be sure, but they are still low.
The relative rarity of oral arguments cannot be attributed to higher case loads and greater pressures on judges’ time. Case loads in 2016 were lower than they were a decade ago and much less than they were in 1996. With fewer cases to decide, judges would be expected to have more time for oral argument rather than less. So what is going on?
In my view, the trend is attributable in significant part to a growing belief among attorneys and judges that oral argument adds little to the decision-making process and is therefore unimportant. That is a belief I do not share. It is certainly true that oral argument may offer little or no benefit in particular cases. As experienced judges and advocates have discovered, however, it is difficult to know with certainty and in advance which cases those are.
By nature, lawyers tend to be good talkers. They are not always the best writers. More than once I have seen a case with poorly written briefs rescued by counsel who was not able to fully articulate his or her client’s position until they had a chance to speak to the court directly and engage in a dialogue with the judges to explain what they really meant. Communication is multi-dimensional. If we leave it to the written word alone, we are apt to miss the message.
Oral argument provides counsel an opportunity to isolate and clarify the core issues in a case and to direct the court’s attention to matters that may have been overlooked or misunderstood. It also enables counsel to engage and explore the justices’ mental processes and make certain that the members of the court are focused where counsel thinks their focus should be. In other words, the interactive nature of oral argument can be invaluable in helping the court “zero in” on the issues that are most important. In a “50/50,” “51-49” or even a “60-40” case, the significance of this cannot be overstated.
Another dimension of oral argument that is not always fully appreciated is its implications for the collective decision making process in which multi-member courts of review must necessarily engage. Oral argument is not just an interchange between counsel and the court. It is an opportunity for the individual members of the tribunal to interact with one another. Questions posed by one judge provide insight into what that judge is thinking and offer new perspectives the others may not have considered. A point pressed by one judge may lead another judge to seek clarification from counsel and so, step by step, point by counter-point, a more complete understanding of the case emerges.
The benefits of interaction are not limited to the oral argument itself. At the Supreme Court level, the justices’ home offices and clerks are spread out across the state from Chicago to Rock Island to Danville to Nashville. In the Fifth District, where I am from, the chambers of the various appellate judges are similarly separated by considerable distance. While the members of the court can and do discuss cases long after argument by telephone and through the exchange of written memos, oral argument settings provide an opportunity for the court to meet and debate issues face to face. It has been my experience that the undivided focus of such conferences yields insights and understanding that an exchange of written memoranda simply cannot duplicate.
Finally, those who give short shrift to oral arguments may be overlooking its importance in providing public visibility and institutional legitimacy to our system of judicial review. Oral arguments provide litigants with their literal day in court where they can witness, firsthand, the arguments for and against their claims. Through the impaneling of three or more judges in a public forum, oral arguments provide affirmation that the judiciary is willing to devote time and resources to help resolve the claims of all who come before it. They give effect to the conviction, deeply rooted in our rejection of the Star Chamber, that the work of the judiciary should be carried out in the full light of day subject to public scrutiny and in accordance with law. They help educate the public on what the courts do and how they do it. They provide reassurance that judges themselves and not some unseen bureaucratic machine are deciding disputes. In sum, they ensure that the guarantee of due process under law is being honored. At a time when the legitimacy of the courts has come under increasing attack, the importance of these functions cannot be underestimated. Whatever efficiencies may be gained through dispensing with oral argument, they are not worth the loss of public trust in the rule of law.