Supreme Court Rule 28.1 provides that oral argument “should emphasize and clarify the written arguments in the briefs on the merits.
Counsel should assume that all Justices have read the briefs before oral argument. Oral argument read from a prepared text is not favored.”
Although most law students think of the oral argument first when they think of appellate advocacy and motions, most judges agree that the brief is more important than the oral argument.
Justice Ginsburg has observed that “[a]s between briefing and argument, there is near-universal agreement among federal appellate judges that the brief is more important.”1In many federal courts, most cases are decided without oral argument. Justice Ginsburg noted that the Fourth, Tenth, and Eleventh Circuits dispense with oral argument in about 70 percent of cases, and Judge Wiener pointed out that almost two-thirds of the appeals filed in the Fifth Circuit are decided without oral argument.2In many trial courts, oral argument is not presumed unless counsel requests it when a motion is filed; even then, the judge may not grant the request. Even in cases in which oral argument occurs, the brief usually has more to do with the outcome of the case. A 1986 article conducted a limited study of three appellate judges and noted that oral arguments changed the views they held before the oral argument in 31 percent, 17 percent, and 13 percent of the cases heard.3This is not to say that oral argument is unimportant. After reading the briefs and relevant authorities, many judges form a sort of rebuttable presumption about how the case should be decided. The oral argument usually convinces them that their presumption was correct, but an ill-prepared attorney may convince them that they were wrong. As one judge observed, “if the court intends to rule in your favor, the easiest way to change the panel’s mind is to be utterly unprepared or ineffective at oral argument.”4The late Justice Brennan once observed, “I have had too many occasions when my judgment of a decision has turned on what happened in oral argument, not to be terribly concerned for myself were I to be denied oral argument.”5Judge Bright, of the Eighth Circuit, has commented that “oral argument is an essential component of the decision-making process.”6 It is certainly responsible for generating more adrenalin.