“Are Oral Arguments Worth Arguing About?”

Yesterday’s New York Times contained a column by Adam Liptak, who covers the Supreme Court of the United States, entitled “Are Oral Arguments Worth Arguing About?”  That column makes the point that, ultimately, whether an appellate oral advocate delivers his or her oral argument seamlessly matters far less than the merits of the case. 

The specific context of the column was criticism in some quarters of the quality of the oral argument made by Solicitor General Donald Verrilli in the health care cases before the U.S. Supreme Court.  According to Liptak’s reporting, that criticism comes almost entirely from the press, academia or pro-Obamacare groups.  Veteran Supreme Court oral advocates had little or nothing negative to say about Verrilli’s performance.

The article also notes the comment of Justice Ginsburg that, as between oral argument and briefing, the briefs are far more important to the decision of virtually any appellate matter.  This is a point that is frequently overlooked.  Especially when an appeal is won, the kudos go to the attorney who argued, rather than to those who wrote the briefs.  Perhaps that is because there is more glamor in oral argument, reacting on one’s feet to the probing questions, from all directions, of multiple jurists, like Jackie Chan or Bruce Lee facing and defeating numerous antagonists.

None of this is to say that oral argument is unimportant or that oral advocates should not be fully prepared.  Oral argument can make a difference in some cases, snatching defeat from the jaws of victory or vice versa.  But there are few if any “style points” given to appellate oral advocates.  It is still better to have the merits on your side than to deliver an argument smoothly and without any pauses, hesitations or hiccups.