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Tuesday, April 01, 2014

Orality in litigation

I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee). They argue for increased live contact between trial judges and attorneys, including many Rule 16 conferences (permitted but not required under the rules), premotion conferences for discovery and summary judgment motions (the district judge I clerked for would immediately get the parties on a telephone conference as soon as a discovery motion was filed), and increased oral argument on dispositive motions. The goal is at least some increase in the number of trials--the ultimate oral process.

The common theme is that more oral presentation of issues (an essential component of greater attorney/judge contact) makes for better, more efficient, and more functional process. Gensler and Rosenthal explicitly highlight premotion conferences as a way to avoid the multi-step "minuet" of motions briefing, saving lawyers the time and money of having to prepare all that briefing and supporting documentation and judges the time of having to review it all. They argue it is easier to get to the core of the issues and to separate the wheat from the chaff with oral presentation, controlled by questions from the court. By contrast, they argue, written motions alone become overly long and complex, with parties often talking past one another, thus they do not reflect the best way to present, understand, or resolve issues. Ironically, of course, their argument comes when written argumentation is becoming easier and faster (via computers, electronic filing, etc.).

Is it right that oral presentation is better than written presentation? Should the legal profession re-orient itself to more oral litigation, at least in the main run of cases that are not overly complex? And how might that affect what and how we teach in law school?

Posted by Howard Wasserman on April 1, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink


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Howard, you flag a very important issue here. I think the right question is not whether oral presentation is *better* than written presentation, but whether the virtues of orality have been overshadowed by concerns about CJRA statistics, docket clearance, and other efficiency metrics. But as Gensler and Rosenthal point out, direct interaction through oral argument or phone conferences is not inconsistent with efficiency -- if cases are managed properly, such interaction can contribute significantly to a more efficient outcome.

There are other reasons to support greater use of oral argument as well. As I noted in a post here on Prawfs on February 24, direct interaction between judges and attorneys can give lawyers a better sense of the judge and her inclinations, thereby requiring less reliance of gossip about the judge from others and resulting in better attorney decisionmaking.

There are also strong benefits to oral argument for the parties and the public. Open court proceedings promote transparency and publicly dignified treatment of parties, which can promote public confidence in the courts and overall court legitimacy. And any sort of oral hearing -- even by telephone or videoconference -- can promote party participation in the decisions that affect a case, which promotes faith in the procedural fairness of the courts and, again, overall court legitimacy. (I have discussed these benefits at length in two recent articles coauthored with Judge William Young -- 118 Penn St. L. Rev. 55 and 118 Penn St. L. Rev. 243 (2013).)

Some sort of balance between oral and written advocacy is obviously necessary. No one would want all issues in a case to be subject to an oral hearing any more than they would want all issues to be decided on the papers. But we are currently tipping away from oral hearings at a surprisingly fast rate -- overall courtroom time in the federal courts is down almost 10% from six years ago. I think we would do well to try to stem that fall.

Posted by: Jordy Singer | Apr 1, 2014 12:45:54 PM

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