Abolishing Oral Argument Is Disservice to Justice

I am writing in response to the guest column by Professor Myron Moskovitz about oral argument in the appellate courts ("Abolish Oral Argument?" Sept. 9). In it Moskovitz presents his proposal about the practice in succinct terms: "[L]et's just abolish it." This is because, he says, the justices on the panel hearing the case already have made up their minds and, in fact, an opinion already is written and ready to go as soon as oral argument is over. Besides that, he says, the justices abuse counsel by asking hostile or biased questions, making the exercise an expensive waste of time.

I have the impression that Moskovitz doesn't really want to abolish the constitutional right to oral argument on appeals; what he really wants to do is persuade other appellate panels to adopt the practice of the 4th District Court of Appeal, Division 2, sitting in Riverside: making a draft opinion available to counsel (and, I assume, to the public) before oral argument.

But for those readers who might take the column literally, let me say that the suggestion that we abolish oral advocacy on appeal would be a serious disservice to justice. It is true that in some cases oral argument is a waste of time. That happens, for example, when appellate counsel is not well prepared. And sometimes there really isn't anything to say. But in many cases, especially those presenting new or complex issues or where counsel is convinced that the trial judge committed clear error, there is something to say. And it is not a waste of time to say it. The draft (by the way we call it the "circulating draft"), expresses only the tentative opinion of the lead judge on the case. My experience and, I believe, the practice on most other panels, is that it is common that substantive changes are made to the draft as a result of oral argument. And while it is not common that the entire opinion is turned around on the basis of oral argument, that happens as well. It also is common that one of the members of the panel, even though tentatively convinced of the correctness of the draft, has a nagging doubt. That judge will probably ask counsel about the issue, providing what may be the last realistic opportunity for the attorney to address the point. On other occasions, the panel may be tentatively divided and a member will ask a question in an effort to elicit a response that may convince a colleague.

Most important, oral argument provides an opportunity for counsel to focus the court on why it is that error did or did not occur in the trial court, and why it is that, if there was error, it is or is not prejudicial.

The practice of sending out draft opinions before oral argument has been considered by every appellate panel in the state and adopted by only one. I have no idea whether the practice began as a result of the 90-day rule (providing that, for cases under submission more than 90 days, judges on the case are not paid until the opinion is filed). But there is no doubt about the beneficial effect of that rule.

Personally I believe that while releasing a circulating draft opinion has some advantages, it carries unnecessary baggage. Among other things, it would clutter an already excessive mass of paper attorneys are bound to read and master, and would substantially delay scheduling of oral argument as drafts are revised and polished before release to anyone. The benefits that could be gained can be achieved by what Moskovitz calls "focus letters." These inform counsel that, whatever else they may wish to argue, the panel particularly wants to hear argument on the identified issues. This is a common practice on the panel on which I sit as well as on many others, and we probably should do it more often. Contrary to Moskovitz's impression, my experience is that these letters are neither opaque nor out of context.

Oral argument is an important part of appellate advocacy, principally because it contributes to a correct and just result in deciding the controversy before the court and in the growth of the common law, as taken from the body of published opinions from our appellate courts. The quality of justice would suffer without it. But if I am wrong about what Moskovitz is really after, his remedy is at hand: he can waive oral argument.

PRESIDING JUSTICE NORMAN L. EPSTEIN, 2ND DISTRICT COURT OF APPEAL

Oral Argument Provides Equal Opportunity

With regard to the Sept. 9 column "Abolish Oral Argument?" by Professor Myron Moskowitz concerning the value, or lack thereof, of oral argument in appellate proceedings, my father, Justice Stanley Mosk never expressed to me, as Moskowitz asserts he expressed to him, that oral argument is a waste of time. He told me that it had a decisive role in at least some of the cases. Indeed, he told me that once, after a prominent attorney's oral argument, the court decided against that attorney's client even though the calendar memorandum had favored that client's position. That Justice Mosk was a vigorous questioner suggests that he considered the process to have merit.

I do not doubt that some justices believe oral argument not to be of value to them. But others find it helpful. When a justice has not prepared the calendar memorandum, his or her views are less solidified. The oral advocate can bring to the attention of that justice facts from the record and legal arguments that have not been highlighted in the calendar memorandum. Even when the justice has prepared the calendar memorandum, oral argument can provide material on issues that have been overlooked. Even if oral argument does not affect the result in a particular case, it can have a role in the content and scope of the opinion. That oral argument is of no or minimal value in some cases does not mean it is not worthwhile in all cases.

The need for oral argument is no less in appellate proceedings than it is in law and motion in the trial court, in which an undisclosed tentative ruling has been prepared. Whether tentative rulings should be disclosed in advance of the argument is another matter. Some suggest tentative rulings given to the parties just make oral argument more of an "empty ritual." Moreover, the questions of the justices often serve the function of a tentative decision provided the parties. Just as in the trial court, oral presentations can not only be helpful to the justices, but also give the parties the feeling that they have had every opportunity to assert their position and that all of their arguments have been considered.

JUSTICE RICHARD M. MOSK, 2ND DISTRICT COURT OF APPEAL