Words to the Wise: David C. Frederick's Supreme Court and Appellate Advocacy

Oral argument in the Supreme Court was once a political and social event of the first order, a contest of rhetoric and oratory that bore a greater resemblance to Cicero's speeches in the Roman Forum than to the high-speed volley of question and answer that marks most arguments in today's Supreme Court. Arguments in the early Court were also tests of stamina. In McCulloch v. Maryland, the arguments of counsel spanned nine days, in Gibbons v. Ogden, the lawyers argued for five, and in Charles River Bridge v. Warren Bridge, William Dutton, counsel for the petitioner, began his argument on Thursday and did not conclude it until Saturday. (1) Throughout, the Justices largely sat silent, leading Chief Justice Marshall to quip, perhaps apocryphally, that the "acme of judicial distinction means the ability to look a lawyer straight in the eye for two hours and not hear a damned word he says." (2) While the form and length of oral argument in the Supreme Court has certainly changed dramatically over the years, one thing has not: Oral argument remains an essential feature of the appellate process in the Supreme Court. Sadly, this is not so true of other appellate courts--federal and state--which have increasingly sacrificed oral argument on the altar of "efficiency." (3) Indeed, in 1999, a Senate Subcommittee report chastised the Second Circuit for continuing its long tradition of granting oral argument in most non-pro se appeals in which the parties request it; the report urged the court to become more efficient by adopting the approach of other circuits, which (the report noted with approval) limit oral argument. (4) The disappearance of oral argument in federal and state appellate courts is surely lamentable. Many have written of the value of oral argument, (5) but the Chief Justice may have summed it up best: First of all, oral argument offers an opportunity for a direct interchange of ideas between the court and counsel. From my own experience, I know that there are only two times when one can be certain that all nine members of the Court are considering a particular case at the same time: one is during the hour allotted to the two attorneys who are to argue the case, and the other is during the conference discussion of the case. Second, ... oral argument serves a function over and above its usefulness in adding to the presentation of the briefs of the parties. It has the value that any public ceremony has. The lawyers and the clients, if they are present, are brought face to face with the judges who will consider and decide their case. The judges are brought face to face with the lawyers who have written the briefs on either side. (6) Equally important, the Chief Justice added, is the truth that [t]he sense of immediacy and involvement--the three-dimensional experience--one gains from such a proceeding is especially important to the judges.... "Oral argument is important as a means of giving the judges a continuing awareness of their relationship and dependence on others; without it, the judges are isolated from all but a limited group of subordinates." (7) The poor quality of oral advocacy in our appellate courts is sometimes cited as a reason for the decline in the number of cases set for argument; some appellate judges privately grouse that oral argument is a waste, both of their time and the litigants' money. Of course, the mere fact that the lawyers do not perform as well as some judges would like does not necessarily diminish the importance of oral argument to the appellate process. (8) Moreover, while lawyers certainly bear responsibility for the quality of their appellate advocacy, there is a certain circularity in such arguments. For as judges reduce the number of cases they set for argument, they also necessarily reduce the opportunities for lawyers to hone their skills and become better oral advocates. …