Oral Arguments Are Often Not Needed Since Many Judicial Decisions Are Predetermined

During motion practice and appeals, courts are tasked with making decisions based on the legal reasoning contained in briefs and any accompanying evidence a litigant might present to a court. In many instances, courts will also hold oral arguments for appeals and motions so that courts can ask questions of the parties and seek clarification about issues presented in the papers. However, from my own experience, it seems that judges often decide matters before oral arguments are even held, and it might be a waste of time to orally argue cases if judges relied on the papers to adjudge a matter before oral arguments.

In a jurisdiction in which I practice, oral arguments seemingly have very little impact on the outcome of a matter. At oral arguments, judges usually engage in the typical practice of giving each side a set amount of time to present their arguments, and this basically just involves attorneys rehashing statements that they already made in the papers. Afterward, the court might ask each side questions, probing the weakness of an argument, and attorneys are afforded the opportunity to clarify any confusion that a court might have in rendering a decision.

However, in most instances, the judge will announce her or his decision on the record without a moment's hesitation after oral arguments have concluded. In many instances, the judge will have a written decision that the judge reads into the record. I spoke with many law clerks that work in this jurisdiction, and apparently, law clerks usually write the decisions for the motions before oral arguments. In only rare instances will a judge be moved at oral arguments to reserve judgment and decide against ruling the way that the judge was leaning toward by relying only on the papers.

Even if judges do not read decisions at oral arguments, sometimes courts issue decisions the same day as oral arguments, which suggests that the matter had been predetermined. One time earlier in my career, my office worked on a big appeal, and a bunch of the associates went to court to hear the partner argue the matter in front of an appellate panel. We could tell that the appeal was not going well for us, and after the oral arguments ended, we returned to our office very mopey because we all knew that we probably lost the appeal.

As it turns out, the appellate court issued a decision that very same day denying our appeal. This made a bad situation worse, and we all drank away our sorrows at a bar after work to get over the fact that our months of hard work had been for nothing. In any event, the timing of the decision suggests that the judges had predetermined the outcome of the appeal, and oral arguments were not really important on persuading the court one way or the other.

Earlier in my career, I had a similar situation with a dispositive motion I filed. I felt that I did well at oral arguments, and since my adversary decided to send an associate that was not familiar with the case, I performed even better at oral arguments than I would have otherwise. As I was performing work later that day in my office, I saw an email notification that the court had already issued a five-page decision on the matter ruling against me. Of course, the court could have acted very quickly after oral arguments, but it seemed more likely that the court had predetermined the matter and had a decision in the can to release after oral arguments had concluded.

Lawyers need to spend significant amounts of time to prepare for oral arguments. Since judges are known to ask esoteric questions about the smallest minutiae of a case, lawyers need to study case materials closely to make sure that they will be able to adequately answer questions at oral arguments. Clients also need to pay for all of this preparation work, and the time it takes lawyers to actually argue a matter, so holding unnecessary oral arguments can have real monetary consequences for many parties. Of course, in some instances, judges need to hold oral arguments on certain matters pursuant to court rules, but in cases where they can dispense with unnecessary oral arguments, they probably should.

I would love to hear from former and current judges about reasons why courts schedule oral arguments even when matters are predetermined. To me, this seems likely a wasteful practice that costs clients money and needlessly uses judicial resources. Sometimes it is easier for judges to render decisions on the record rather than write a formal opinion, but if a decision is already written, there doesn't seem to be any compelling reason to hold oral arguments in many cases.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.