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:

1. The underlying case is procedurally complex and questions would allow the Court to know which parts of the procedural history are important.

2. The advocates have sharply differing views on the proper framing of the legal arguments, and questions would allow the Court to test the framing.

3. 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.

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”

“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.”

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.”