THE EVOLUTION OF APPELLATE ORAL ARGUMENT
[Posted January 13, 2016] Two coincident circumstances have brought my attention to the history of oral argument in the Supreme Court of Virginia. First, I received for Christmas, in addition to the usual half-ton of anthracite and big bundle of switches, a copy of Tom Morris’s 1975 book, The Virginia Supreme Court: An Institutional and Political Analysis. As far as I know, no one has undertaken to update that book in the ensuing 40 years, so this is the most current history we have of the court.
The book contains very little about oral argument; just a single sentence on page 73, accompanied by a historical footnote. But oh, that footnote!
When the present Rules of Court became effective, in 1950, each side was permitted one hour. The allotted time was reduced to forty minutes in 1969 and finally to the current thirty minutes in 1971. [Citations omitted]
An hour! I’d always known that oral argument was once much more expansive than it is today; but I hadn’t realized how quickly it shrank in just a couple of years.
The second trigger for this essay is my current work in updating a chapter for Virginia CLE’s book on appellate advocacy. In reviewing what I had written a few years ago, I came upon a reference to the time limits for argument – now just 15 minutes per side – and it occurred to me to add a historical footnote, based on part on Prof. Morris’s. This essay is a greatly expanded version of that footnote.
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Once upon a time – believe it or not – appellate oral argument had no time limit. The early appellate judiciary in Virginia, as elsewhere, entertained arguments for as long as counsel felt the need to go on, and as long as the jurists had questions. For a notable example of a long argument, we may turn to Hunter v. Martin, 4 Munf. (18 Va.) 1 (1814). This is the case in which the judges of Virginia’s highest court thumbed their noses at a mandate from SCOTUS, eventually resulting in the 1816 decision from the latter court, Martin v. Hunter’s Lessee, 14 U.S. 304, one of the pillars of federal judicial review.
The judges of the Supreme Court of Appeals of Virginia listened patiently to six days of oral argument, beginning on March 31, 1814, and ending on April 6, coincidentally the very date of the Emperor Napoleon’s abdication across the pond. I don’t know how many hours each day the court was in session, but let’s be conservative and assume it was only three hours – that’s still about 18 hours of argument, in a single case. (It was likely closer to 30; maybe even 40.)
This made me wonder whether oral argument was more important then than it is today in the jurists’ decisionmaking process. Nowadays, the appellate judges and justices I talk to tell me that oral argument changes their view of the case from 10-20% of the time; let’s go with 15% as an estimate. Where a powerful Nineteenth Century appellate advocate could hold sway over a mesmerized court for days – and believe me, some of them were perfectly capable of doing just that – oral advocacy was probably a much larger factor in the eventual outcome.
From what I can glean from the Rules of Court that appear in early volumes of Virginia Reports – there was no separate rule book before 1950 — the first time limit imposed upon oral argument in the Supreme Court appeared in 1871. The court decided to limit what must have become tedious arguments to two hours per lawyer. Note that that’s per lawyer, not per side; back then, if the maximum of two lawyers represented a given litigant, each lawyer got two hours. And there’s more: if an appellant had the right to open and close, his lawyer got two hours for each speech; he didn’t have to divide his time. An argument like that wouldn’t go on for six days, but it could easily turn into an all-day affair.
That arrangement lasted 12 years. In 1883, the court amended the rules to provide a flat two-hour limit for each side. (The court had the power, then as now, to provide for a longer argument in individual cases.) But by 1906, that limit was proving to be too long: “In view of the increased volume of the business of this court, the following amendment of Rule XIV has been found to be necessary.” The court reduced the time for most appeals to an hour and fifteen minutes, though it still allowed two hours for criminal cases and appeals from the Corporation Commission.
Although I haven’t found a similar order, it appears that the court thought better of that almost immediately; in 106 Va., covering 1906-07, the rules provide no exception for Corporation Commission appeals, and only felony appeals got the two-hour limit. In 1921, even the felony exception disappeared; at that point all appeals were allowed an hour and fifteen minutes.
Three years later, the court trimmed this limit back to an hour per side for all appeals, again subject to exceptions by order in individual cases. That limit made its way into the 1950 edition of the Rules of Court, as Prof. Morris reported. After remaining stable for 45 years, the time shrank to 40 minutes in 1969, 30 minutes in 1971, and to just 15 minutes in 2010.
So what factors caused us to go from two hours per speech in the Nineteenth Century, to the drive-by arguments of today? I can’t give you a definitive answer, because I’m not a court insider, and I certainly wasn’t one back in the 1920s. I do, however, have some speculation. And since this isn’t a deposition or trial testimony, I feel free to speculate.
I believe that the two principal suspects in this investigation are judicial caseload and poor-quality oral arguments. The former suspect may lead the justices to conclude that they cannot take as much time listening to arguments as before. The latter may lead them to conclude that they don’t want to. Let’s explore the first one.
I have almost no statistics for the early years of the Supreme Court, but it’s overwhelmingly likely that in comparison with, say, 1820, today’s court receives far more filings. The growth in Virginia’s population alone makes that quite likely, at least when you reach back to the early years of the Commonwealth. You can forget the six-day arguments; those would grind the modern court to a halt.
But what about the good ol’ one-hour-per-side arguments? What was wrong with that limit? After all, if a case is important enough to merit a slot on the argument docket of the state’s highest court, doesn’t it deserve a little more contemplative approach?
My personal view is, “yes, it does,” and I’d like to see the court expand the time it allots for argument, at least in most of the cases. I believe the court has gone overboard in streamlining the argument docket. But the members of the court will likely disagree; they probably prefer not to have hour-long arguments as the norm. After all, a great many cases don’t require a full hour; but give a lawyer an hour and he’ll take all of it.
Does the docket-size factor justify this sharp reduction in time limits since the dawn of the Nixon Administration? I can’t make a perfect comparison, since the earliest statistics I have for the court go back only to 1980. But that comparison, at least, is startling.
In 1980, the Supreme Court took in 2,091 new cases and granted 234 petitions for appeal. In 2014, the most recent year for which I have figures, there were 1,918 new cases, and the court granted just 112 writs. Throw in the 11 of-right cases, and the court decided just 123 appeals on the merits in 2014.
The math isn’t hard: the court is receiving about the same number of new filings now as 35 years ago, and it’s hearing about half as many cases on the merits. If you multiply the number of merits cases by one hour (30 minutes per side) for the 1980 docket and 30 minutes (15 a side) for the 2014 docket, you’ll get 234 court hours in 1980 and 62 hours in 2014. The court is spending only about a quarter as much time in full session as it did in 1980.
To be fair to the justices, they do spend time in court on writ panels. There are seven of those each year, and my best guess is that each one lasts four or five hours. That’s another 30-35 hours a year. But the 1980 court had writ panels, too, and roughly the same number of petitions, so that factor shouldn’t change the calculus.
In their further defense, the justices spend plenty of time reading petitions, briefs, and other filings, plus lots of time writing and editing; it’s not a part-time job. But the in-court component of that job has shrunk away to almost nothing. Counting writ panels and merits arguments, each justice will spend well under 100 hours — probably closer to 80 — each year inside a courtroom. That shrinking public presence makes the court seem wholly removed from the citizens it serves; at least in comparison with a couple dozen years ago, the public gets precious little face time with the justices.
By now, half of the justices are thinking of ways to roast me alive for painting this picture. I hereby certify that the purpose of this essay is not to embarrass them. It is, however, my intention to point out that the court has considerable – substantial – capacity to spend more time in oral arguments, especially in the more significant cases. As I type this, the court is in a January 2016 session that will last just 2½ days. The 14 cases on the docket are slated for a total of 7 hours and 10 minutes.
Of course, the court could also grant a few more writs; those are always good for business. But that’s another essay.
Where will this shrinkage end? Is there an asymptote below which oral argument cannot go without being eliminated entirely? While it’s not pleasant to contemplate – especially for those of us who regard oral argument as the most enjoyable part of appellate practice – it’s quite possible that the court could reduce the times even further, to perhaps twenty or even fifteen minutes per case. Ten? Now, I know of no movement to do anything like that, and if anyone has such an idea, I hope this essay dissuades them.
But if you can’t picture lightning oral arguments like that, think back to the lawyers of the Nineteenth Century. Imagine yourself asking one of those great advocates whether the court should limit oral argument to even 30 minutes per side; never mind the 15 a side we get today. “What? Just thirty minutes to argue? Preposterous! No lawyer can make even a passable oral argument in such a short time. The idea is too foolish for me to waste time refuting.”
In that vein, it is distinctly possible that the court could shorten oral argument time even further, no matter how “preposterous” such a suggestion might seem to you. I urge instead that the court reverse the trend, which has gone too far.
In the oral arguments I deliver, I very rarely bump up against even a 15-minute time limit; I want to conclude my argument and hand the chief justice some change back from his 15 minutes. But that’s because I purposely perform ruthless triage on what I’ll argue. A 30-minute argument would allow me the freedom to explore more issues, and would allow the justices time to ask even more questions than they do now, to satisfy themselves on difficult points. (I would still likely give back some change.)
Of course, the lawyers of today can and should do their part, by improving the quality of the arguments they deliver. That will help their clients and reduce the chances of judicial ennui near the end of a full day of arguments. It might even make the court more receptive to the concept of longer arguments.
For now, the trend in the court, extending almost 150 years, is uniformly downward, with ever shorter oral arguments. It pains me to think that we may not have reached that asymptote. I’m heartened by the fact that when jurists talk about oral argument, they always say something like, “Oral argument is valuable to me in sharpening my view of the case …” If so, the court should at least loosen the 15-minute straitjacket, to allow the appellate system more freedom to breathe.