Written by Judge Donovan Frank, United States District Court for the District of Minnesota
After nearly nineteen years on the federal bench, I continue to be truly amazed by the trend of United States District Courts across the country to cancel oral argument on dispositive motions. The District of Minnesota has consciously avoided following this trend. Admittedly, I may be a bit old-fashioned and hold the view that individual parties to a lawsuit deserve their day in court. Moreover, when you deny oral argument, it may create the perception that the parties are not getting their day in court, the judge does not think the case is important, or the judge is too busy to let the lawyers come in for a few minutes to tell him or her what is most important to their client in their case.
Consequently, for what it is worth, I make a few observations about oral argument:
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Most oral arguments are good, meaning they are succinct, well-prepared, and focused on the strengths and weaknesses of the case. Furthermore, in most cases, the experienced and prepared lawyer anticipates the questions or concerns of the presiding judge. Experienced lawyers do not simply reread or summarize their brief, but they focus on the strengths and vulnerabilities of their case. Most oral arguments fall into this category.
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Equally important, is the fact that it is rare for a judge to ever go into an oral argument without questions for the attorneys. It is also rare for a judge not to learn something about the case in terms of what is most important to each of the parties during oral argument.
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Moreover, even though many fine jurists across the country do not permit oral argument on dispositive motions, I am convinced that in many cases it may damage the image of the court in the eyes of the client, if not the lawyer, given the expense of taking a case to federal court. Indeed, I often wonder whether the client is forced to ask: “Isn’t the judge going to allow you to come in for a few minutes to explain the key issues and what is most important in my case?”
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Of course, there are some oral arguments where perhaps the lawyer is not prepared or is not familiar enough with the case, but that indeed occurs in only a small number of cases.
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Contrary to what some may believe, it is important for lawyers to realize that oral argument can—and often does—have a decisive impact in shaping the judge’s view of the proper outcome in a case. In contrast with the information gleaned from only a paper record, oral argument gives the judge an opportunity to witness the lawyer’s demeanor, confidence or lack thereof and overall position relative to the issues. In short, oral argument lets the judge see whether the lawyers truly “buy their own arguments,” and can meaningfully influence the Court’s view of the proper outcome in a case.
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Finally, most arguments, like most briefs, could be a bit shorter. The most prepared and experienced lawyers with the best oral arguments rarely use or need the full thirty minutes that they are typically allotted. As the same may be said of blog posts, I will conclude my remarks here with the hope that these few reflections have shed some light on this important topic of interest to the federal court and the bar.