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”?