In a recent article by Adam Liptak in the New York Times, he noted that several commenters have questioned the value of oral argument at the U.S. Supreme Court. Needless to say, this matter is not confined to the Supreme Court, as we recently reported concerning the Sixth Circuit’s evolving thinking on the question of oral argument. The comments referenced in Mr. Liptak’s article echo what numerous Sixth Circuit judges have said publicly at conferences and CLEs about how influential oral argument actually is (ie, that it rarely determines the outcome), and regardless of one’s views of oral argument, this reinforces yet again the paramount importance of briefing in the appellate process. It should be said, however, that no one needs to write the obituary on oral argument just yet. Generally speaking, judges do find oral argument helpful in a large percentage of cases even if it does not ultimately influence the outcome. It may help shape the contours of the opinion or offer refinements on issues that might have otherwise escaped the Court’s attention. So while the days of automatic oral argument may well be over, it still represents an integral part of the appellate process, and one that should not be overlooked by counsel.
