An eternal debate among appellate advocates is whether oral argument makes a difference in the outcome of a case. Of course, that the question is even up for discussion betrays the bar's skepticism toward this integral part of the appellate process. In fact, this wary attitude is apparently held by the courts too, as evidenced by the nationwide trend in limiting the time available for oral argument and/or limiting argument to the court's discretion. In this regard, Justice Ginsburg's statement nicely summarizes the prevailing view: “[o]f the two components of the presentation of a case, the brief is ever so much more important. It’s what we start with; it’s what we go back to."
Why attorneys remain skeptical of the value of oral argument is hardly a mystery. After spending numerous hours on reading the record, researching the issues, and writing and editing the brief, the attorney will usually have a firm grasp as to the strength of the case by the time the oral argument date arrives. At oral argument, the tenor of the panel's questions will usually confirm the attorney's initial belief as to whether the case is winnable. Hence, the attorney, well aware of the case's numerous weaknesses, will predictably face a barrage of hostile questioning while the attorney with a strong argument will unsurprisingly encounter light questioning, assuming the attorney receives any questioning at all.
It often seems that the decision has already been written before the case is called to the calendar. Despite the perception that oral argument is a futile exercise for everyone involved, lawyers have much to learn from the experience, regardless of the outcome. Sometimes, the panel will approach an issue from a wholly different perspective than the parties. Thus, a sharply contested point may not be all that important to the case's disposition. Conversely, an uncontested issue may be of paramount importance to the court. At oral argument, lawyers may also be surprised to find secondary and tertiary issues are at the forefront of the panel's collective mind. Or, they may be equally surprised to hear the court suggest that the mattet, which at first glance appears to turn on the facts, ultimately hinges on a novel issue of law.
Time and again I have been quite surprised by how a panel will take a completely different and unexpected approach to the issue at hand. This is what keeps me from caving to the temptation of throwing up my hands and exclaiming, "what's the point?" For the appellate advocate, the value of oral argument lies not in whether the attorney can win the case here, but whether the attorney can glean insight into the court's thinking on an issue. With every argument, the attorney gains institutional knowledge of a court's approach to a legal issue, and can bring that wisdom to bear in future cases. This is invaluable knowledge for any appellate attorney. Just ask any former law clerk.