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Monday, January 13, 2020

Why not just have oral argument?

Bloomberg has a story (behind paywall) Judge Alan Albright of the Western District of Texas and some of his standing orders and practices. Among them: The use of "audio briefs," recordings of briefs longer than 10 pages, which the judge listens to while driving and biking.

I am in favor of greater orality in litigation. But part of the benefit of more orality is more bench presence and more contact between the court and the advocates. This seems to provide the worst of both worlds--the looser argumentation of oral compared with written advocacy, but without the presence and contact.

Posted by Howard Wasserman on January 13, 2020 at 11:02 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


This likely says more about the way this judge learns - being what Peter Drucker called a "listener" rather than a "reader" - than it does about judicial decision making generally. But in general lawyers overestimate the degree to which judges or their clerks read carefully every word and citation, much as legal scholars overestimate the level of attention to which others give their law review pieces. More often, a glancing understanding of the arguments is sufficient.

Bottom line, however, people learn in different ways, including judges. Some are readers, others are listeners, others learn by questions and answers.

Posted by: Anonymous | Jan 14, 2020 1:48:39 PM

When I clerked for J. Lumbard on the Second Circuit 1981-82, pretty much every case was argued. Disposition by order without oral argument was very rare - I don't recall any, but that might just be my memory. However, if a case was really easily decided, the court would sometimes render an oral judgment on the spot. That was always a shot in the head for the losing lawyer who invariably had a higher opinion of the strength of his case.

Posted by: Douglas B. Levene | Jan 14, 2020 4:31:23 AM

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