In an article available here, Law360 reports today that there has been a precipitious drop in requests for oral argument in the Appellate Division. Citing statistics from the judiciary, the article says that, for the Appellate Division term that began in September 2012, requests for oral argument decreased by nearly 9% compared to five years ago and 23% compared to ten years ago. Oral arguments in the Third Circuit Court of Appeals have also been declining, but there the court, rather than counsel, decides whether to request oral argument.
Some attorneys and clients look to save expenses by waiving oral argument. Others believe that their cases will be decided more quickly if they are submitted rather than argued. The expense of oral argument does need to be weighed against the size of the case, the complexity of the issues and the likelihood that those issues can be clarified at argument, and many other factors. The notion that submitted cases are decided more quickly, even in years when that is true in the aggregate, does not justify waiving argument in a case where it would otherwise be desirable, since any particular decision can take less time (or more time) than the mean or median, depending on the nature of the case, who the judges are, and other considerations.
Oral argument is often a valuable opportunity to educate judges about a case and, more importantly, for counsel to hear about the judges’ concerns and to try to allay them. As a result, in all but the easiest or the smallest dollar value case, oral argument should be requested. The Law360 article contains a statement by Judge Messano that there may be calendars for the upcoming term without any oral arguments scheduled. That would be a loss for the bench, bar, and clients.