Taylor C. Young 2013-03-06 00:17:23
Written and Oral Advocacy on Appeal: A View From My Room Taylor C. Young is an AV® Preeminent™ Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to- mid size law firms, in-house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com. As an American appellate lawyer, I often quip that, basically, my job is to go my room and write. And I mean it. There are a couple of reasons why. First, clear writing and clear thinking are inextricable. You can’t have one without the other. I’m hardly the first to make this observation. As Joan Didion put it, “I don’t know what I think until I try to write it down.” Writers such as Edward Albee, John Cheever, Alfred Kazin, Flannery O’Connor, Ambrose Bierce, and doubtless many others have expressed variations on the same theme. William Zinsser said it most succinctly. For Zinsser, “Writing is thinking on paper.”1 Like Didion and Zinsser, my clearest thinking comes in the act of writing. Often, a winning argument will only reveal itself after the toil and scrutiny of writing causes me to discard conspicuous, but less deserving arguments that are obscuring my view. By constantly asking myself, what am I trying to say and have I said it, the merits, logic, and force of the legal argument come into stark relief. Second, appellate law—as it is practiced in this country—revolves around written advocacy. Unlike the English appellate tradition, where lengthy oral presentation and argument predominate, our appellate courts have steadily increased their reliance on arguments presented to the court solely in written briefs. Where the opportunity for oral argument used to be the rule, it is increasingly the exception. Our appellate courts, faced with heavy caseloads and pressures to increase efficiency, routinely deny oral argument on the rationale that the “the facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument.”2 And, even when the court grants oral argument, time is severely limited—usually less than 30 minutes per side. The court’s bias in favor of written versus spoken legal reasoning applies to the bench as well as the bar. In United States v. Higdon, Seventh Circuit Judge Richard Posner chastised the trial court for ruling ex tempore in a complex sentencing. He commended written decisions because “[t]he discipline of committing one’s thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court.”3 And, because writing is a surer path of communication, it is the appellate brief—rather than the oral argument— that the court is likely to turn to as it drafts and revises its own written decision in the matter. Except for the most potent oration or egregious concession, the oral argument inevitably fades from the court’s view in the weeks and months it takes to produce the memorandum decision or opinion. Does this mean that oral argument is unimportant? Perish the thought. It is tragic that the role of oral advocacy has been so reduced in the American appellate scheme. Oral argument adds a critical dimension to the process. From a public policy perspective, oral argument helps reveal the appellate court’s thinking and opens up at least part of the court’s decisional process to the public and the parties. “[Without oral argument] briefs go in one end of the opinion factory (also known as the [appellate] court building) and opinions come out the other end, without any chance for the public or the parties to understand who really decided the case and whether the decisionmakers truly understood the parties’ concerns.”4 It is important to the bench, too. For the late Chief Justice Rehnquist, “[o]ral argument is important as a means of giving judges a continuing awareness of their relationship and dependence on others; without it, the judge is isolated from all but a limited group of subordinates.”5 From a pragmatic standpoint, oral argument allows the lawyers and the court to clear up ambiguities in the legal arguments or record and to correct course before it’s too late. As an appellate lawyer, I accept that I will spend most of my time in my room committing thoughts to paper. Given the importance to my clients of having clear thinking about their legal issues presented in clear writing to the court, I can hardly do otherwise. But I do lament the diminishing availability of oral argument. It’s not that I pine for a time when soaring oral rhetoric could carry the day. Nor do I have some selfish need to flex my oratorical muscles in front of the robed set. Rather, I am saddened to see the tradition of intellectual discourse at oral argument get squeezed out by other demands. Briefs may be “adequate” raw materials for the “opinion factory,” but not for a court duty bound to issue robust and well-reasoned decisions that dispense justice and advance development of the law.
Published by Target Market Media . View All Articles.
This page can be found at http://digitaleditions.walsworthprintgroup.com/article/APPELLATE+LAW/1337143/149408/article.html.