Oral Argument Style and Value
As readers have probably already determined, I have a particular interest in orality and oral argument. Two recent items caught my attention and seemed worth sharing. First, Listen Like a Lawyer, an excellent blog about a important skill that receives far too little attention, had a post Oral Argument as an Improvised Conversation. It takes the common bromide that advocates should think of oral argument as a conversation with the bench. That leads the author to two inquiries. First, “how can it be an authentic conversation when the power dynamics are so skewed toward the judges and when the attorney is ethically bound to advocate for the client?” This is worth exploring further. Second, if we accept that oral argument is a conversation, albeit one with skewed power dynamics, are there lessons oral advocates can learn from modern sales practices? The blog post and the monograph it examines certainly think so.
Second, PrawfsBlawg had an April 1 post, Orality in Litigation, suggesting The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal, which proposes greater contact between trial judges and attorneys. Having documented (and bemoaned) the decline of oral argument at the appellate level, I’m obviously a very receptive audience for these authors. Gensler and Rosenthal offer some excellent ideas about the benefits, obvious and subtle, of increased (or as they call it “reappearing”) judicial involvement in real-time, face-to-face meetings with attorneys.