In today’s Daily Journal [subscription required], Presiding Justice Norman Epstein and Justice Richard Mosk of the Second District Court of Appeal have each responded to Professor Myron Moskovitz’s September 9 article entitled “Abolish Oral Argument,” which we discussed in this post. In that article, Professor Moskovitz argues that oral argument is generally not a useful exercise because the appellate courts have prepared a tentative opinion that is unlikely to change much in response to anything said at argument. In any event, he argues, if oral argument is retained, the appellate courts should adopt the practice of the Fourth District, Division Two in Riverside, and share their tentative opinions with counsel in advance of argument in order to focus the discussion.
We trust that no one will think the Professor’s remarks extend to the import of argument at the California Supreme Court. Some of us who have appeared in that can attest that argument can and not infrequently does shape the result in the court’s final opinions. We have seen that opinions contain direct references to points that were tangential or absent in the briefing, but that were front-and-center at argument. Even if the basic disposition in a tentative draft may not change after argument, important qualifications may result from argument. And, in today’s Daily Journal, Justice Epstein confirms our sense that the same can be true in the intermediate appellate courts as well.
Justice Epstein says that oral argument is “is an important part of appellate advocacy,” noting that courts commonly make substantive changes to draft opinions as a result of oral argument. In addition, it is sometimes the case that the panel is tentatively divided, or at least one panel member has “a nagging doubt” about the correctness of the opinion. Justice Epstein argues that, especially in those situations, oral argument is the last, best opportunity for counsel to address a critical point and demonstrate prejudicial error. Justice Epstein also notes, somewhat caustically, that if Professor Moskovitz believes oral argument is largely pointless, “his remedy is at hand: he can waive oral argument.”
For his part, Justice Mosk takes issue with Professor Moskovitz’s statement that his father, the late Supreme Court Justice Stanley Mosk, thought oral argument a waste of time. Justice Mosk asserts that his father never expressed that view to him. To the contrary, the elder Mosk said that “it had a decisive role in at least some of the cases.” Justice Mosk goes on to express his own view that oral argument matters because “[t]he oral advocate can bring to the attention of [justices who have not prepared the calendar memorandum] facts from the record and legal arguments that have not been highlighted in the calendar memorandum.” Justice Mosk continues, “Even when the justice has prepared the calendar memorandum, oral argument can provide material on issues that have been overlooked. Even if oral argument does not affect the result in a particular case, it can have a role in the content and scope of the opinion.” Like Justice Epstein, Justice Mosk is skeptical of the benefits of sharing tentative opinions with counsel in advance of oral argument, noting that “[s]ome suggest tentative rulings given to the parties just make oral argument more of an ‘empty ritual.’ Moreover, the questions of the justices often serve the function of a tentative decision provided the parties.”
No doubt this fascinating and useful debate will continue.
