“Oral Argument in Federal Court Becoming a Lost Art”

P.J. D’Annunzio had this fine article in the Legal Intelligencer Monday — its headline is the title of this post — looking at the decline in the number federal circuit and district court oral arguments.

Of particular interest are Chief Judge Brooks Smith’s views:

The expense of oral argument is something that is often overlooked in the conversation over its disappearance, Smith said. Travel costs can be prohibitive for clients who need to send their lawyers cross-country to appear in a circuit court. This leads to clients settling with having their arguments made in briefs.

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For the most part, Smith said, lawyers do stick pretty close to their briefs when arguing before the court. Be that as it may, he noted that there is still use for the practice.

“The phenomenon of oral argument is something I still marvel at as something that is able to refine a point orally that might not come across on the printed page,” Smith said.

It also provides judges with the opportunity to ask for greater clarification of a point that may have been unclear in a brief. Additionally, Smith said oral argument can be used by a judge on a panel to persuade his or her colleagues on a certain point.

“That judge may be seeking to make a point with one or both of the other judges on the panel,” Smith said.