The Texas Appellate Law Blog writes Tuesday about the proposed rule changes that were circulated by the Court a few weeks ago. The proposed rules are here.
I largely agree with Todd’s comments but wanted to add a few thoughts about some of the proposed rules.
A proposed new TRAP 38.1(e) expressly authorizes counsel to include a heading in their court-of-appeals briefs describing the reasons why oral argument should (or should not) be granted. A change to TRAP 39 describes what factors a court of appeals should weigh when deciding whether to hold argument. (( Neither of these rules applies to filings in the Texas Supreme Court. ))
Todd’s reaction (( His reaction to the new TRAP 39: “While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn’t have to give the parties a reason for denying oral argument.” )) echoes his post from a few weeks back lamenting what he saw as capriciousness in the Third Court’s oral-argument settings. His comments then:
I’m handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial. The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years. Both parties requested oral argument in their briefs. …
I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission. The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court’s submission calendar. Per this postcard, the Court denied the motion without comment.
How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008? Has the Court already decided how the case will come out, thus rendering any argument futile? If not, why did the Court deny argument in this (or any other) case?
I feel for him; we’ve all had cases we felt were sure candidates for oral argument be sent to a submission docket. Once in awhile, we are equally surprised when the reverse happens. And I don’t know anything about whether his particular case deserved argument.
What strikes me about the new rules is that they focus on somewhat different factors than the very common-sensical ones Todd mentioned about his case. New TRAP 38.1(e) and TRAP 39 focus on the decision-making process of the Court, not how the argument will benefit litigants (or how it may appease the many counsel who — as do we all — enjoy the give-and-take of appellate argument). Proposed TRAP 38.1(e) asks counsel to explain in their brief “how the court’s decisional process would, or would not, be aided by oral argument.” Proposed TRAP 39, in turn, asks the court of appeals to consider four factors, including whether “the decisional process would not be significantly aided by oral argument.”
It remains to be seen if the TRAP 38.1(e) statements will meet that lofty goal. It seems more likely that litigants will take the easy approach and just treat this page of their brief as a mini-summary, missing the chance to persuade the court that an oral argument might add a dimension to the case that the briefing cannot. If litigants instead take new TRAP 38.1(e) seriously, they will have to write statements that embrace the complexity of the issues in the case — perhaps acknowledging that both sides have a point to make — and going beyond merely trying to sell their side as being “clearly right” or their cause as “important.”
I’ve had some posts about oral argument at the Texas Supreme Court simmering on the back burner, but I’ll ask this question for now — a question that seems equally applicable at the court of appeals level: In what circumstances does oral argument “aid” an appellate court’s “decisional process”?
4 responses so far ↓
1 D. Todd Smith // Apr 9, 2008 at 7:46 am
Thanks for adding to the discussion, Don. I wanted to write a more in-depth post about the new rules, but time just wouldn’t allow it.
2 Anonymous // Apr 9, 2008 at 8:07 am
I can’t help but think oral argument is only granted for well known appellate advocates. It’s not that I think they do anything improper, but that the judges don’t want to sit through a laborious butchering of 15-45 minutes. It is probably a good thing that they don’t give out reasons because otherwise the reasons would go something like this:
“Request for oral argument denied because the court can plainly see from the briefing that counsel for the appellee is a total %^&*head. While we would prefer an opportunity to examine these issues in a fair and reasoned way, we simply couldn’t tolerate sitting through the unbearable torture of another unprepared attorney with an inelegant argument.â€
So I suppose under the new rules, my explanation will go something like this:
“Respondent requests oral argument because respondent’s counsel is well prepared and agrees to avoid name calling, story telling (unless short and appropriate), and stuttering on about abstract philosophical ideals that were never raised in the trial court.
Oh, and it would aid the court.â€
3 Don Cruse // Apr 9, 2008 at 9:32 am
Judges at CLEs routinely say that oral argument never or almost never changes the outcome of a case. I suspect that’s more a measure of the quality of argument than the predetermined nature of the outcome.
My personal view is that an argument that does nothing but summarize the main points of the brief in a pretty way is a waste of everyone’s time (even if a more entertaining waste than the same speech poorly delivered). You can get that from five minutes spent with the brief instead of twenty minutes of argument. An oral argument has to go beyond that to actually help the court.
The previous Anonymous poster suggests that appellate courts are more inclined to grant argument to “well known appellate advocates” because the court has more confidence that the argument might actually be useful, instead of an exercise in frustration.
There is some truth to that, although I would say that I have seen a few “well known” advocates give unhelpful arguments and many entirely unknown ones give helpful arguments. Perhaps a good TRAP 38.1(e) statement is a chance for a less-known advocate to demonstrate that he or she would be focusing an oral argument on the kinds of things helpful to the court.
CLE topic for next year: “How To Write a TRAP 38.1(e) Statement That Shows You Aren’t Going To Hector the Court for Twenty Minutes”
4 Jeff N. // Apr 10, 2008 at 8:43 am
No doubt that advocates should do more work to prepare for argument, but the trend to fewer arguments has been bad for the interests of justice. People (litigants, not lawyers) who bring appeals to Texas courts have a right to expect a day in court instead of an invisible process they can’t understand.
From the Court’s perspective, I think the decisional process is aided by argument in many cases. In most cases the briefs don’t do a perfect job of explaining the facts or even the law. A candid oral argument is a chance for the court and the advocates to all get on the same page about confusing aspects of the case on appeal.
In particular, oral argument can help the decisional process in cases where:
The underlying case is procedurally complex and questions would allow the Court to know which parts of the procedural history are important.
The advocates have sharply differing views on the proper framing of the legal arguments, and questions would allow the Court to test the framing.
The factual accounts are sharply contrasting, and questions would allow the Court to determine if the facts have been misstated.
I think the quality of appellate advocacy increases when there is more interaction between Courts and lawyers, and hope the new rule achieves more and better arguments, which I believe is its intended effect.