A Different Box – Part III

Let’s think outside the box of American appellate procedure. Let’s consider the British box.

We inherited our common law system from the Brits – both substance and procedure. This included appellate practice, when our country was young. But we’ve since parted company – by a lot.

I’m no expert in British appeals, as I’ve never practiced there. But from what I’ve observed and read, here’s a short summary of how they do it. (A more complete description appears in Ehrenberg, Embracing the Writing-Centered Legal Process (2004) 89 Iowa L.Rev. 1159, 1166-1170.)

Each of the opposing advocates submits a very short written brief, called a “skeleton argument,” which states the issues and refers to documents – but includes no argument! Nor does it fully describe the facts.

So the appellate judges arrive at oral argument knowing very little about the case. They’ve done no legal research, and they have not met to discuss the case.

They will spend much of the oral argument learning the facts – from the barristers. And research will occur during the oral argument. Yes, a judge might disengage from the discussion for a few minutes to read a case or document. The oral argument is quite informal, with cross-talk between counsel and judges, who sometimes confer with each other – in hearing of everyone in the courtroom.

The oral argument ends when the judges have learned enough from it to be ready to decide the case. Sometimes a judge will simply announce his vote and reasoning from the bench, though today they usually write their opinions later. Either way, the opinion comes straight from the judges, as no research assistants help them write opinions.

All this takes time – several hours, and sometimes a few days.

Quite a contrast to the American way, no? We rely on extensive written briefs and very short oral arguments. Brits rely on very short briefs and extensive oral argument. (And that’s the way we used to do it, in early America. But the greater size of our country made travel to oral argument more difficult in those days, leading to reliance on written briefs.)

Which is better? That depends on what goes into “better.”

One measure is efficiency. American judges might react: “Oral argument for several days? Are you kidding? We have too many cases to make time for that.” But this overlooks the time they now take to read long briefs, research the record and precedents, and draft long opinions. Maybe the British system saves judicial time. I’ve seen no studies on this.

To my mind, the most important goal is the quality of justice. Which system produces the best decisions? Isn’t this the whole point of allowing appeals?

Plato believed that the truth is acquired better through interactive questions and responses – presented orally – while the written word is a mere shadow of the spoken word. This might apply to how appeals are handled.

One of the most frustrating experiences for an American appellate advocate is to receive an opinion that does not seem to follow “the law.” Facts seem twisted, precedent cases are distinguished on grounds that do not stand up to reason, etc. This has happened occasionally to every appellate advocate. But why did it happen? Often, the attorney rails at the judges for bias, lack of intelligence, or lack of commitment to the law. But I suspect something else might be at work. Judges seek justice. Occasionally, the result that seems dictated by precedent does not feel fair to them. But a respect of stare decisis makes them reluctant to say the precedent is wrong. So they determine the fairest result and then they (or their research attorneys) do their best to write an opinion that does not appear to depart from precedent. A difficult task, and the final product is not always convincing.

This is less likely to happen, I suspect, in British appellate courts. That sceptered isle is the home of the common law, which developed slowly, moving case by case, with judges evolving the rules to meet new situations. Through lengthy interaction with judges during extensive oral arguments, the advocates can watch the minds of the judges themselves (not the research attorneys) working through the problems, consulting the precedents and adjusting them as justice requires in the particular case. The judge might tell you, “I agree that the rule announced in R. v. Smith holds this, and that would require X result here. But is that fair? Maybe we should amend the rule a bit.” And the resulting opinion might say this, instead of purport to “distinguish” R. v. Smith on unconvincing grounds. Thus, the opinion might state the judge’s actual reasoning more accurately than an American opinion – making justice more transparent and furnishing a precedent that is a more reliable indicator of what the judge might do in the next case.

Some say that orality invites judges to decide cases on “emotion,” while written interaction fosters reason. But what we call “emotion” is often no more than a feeling for justice. In any event, written arguments and opinions might hide “emotions” behind a façade of reason. Wouldn’t it be better to get any “emotional” considerations out in the open, at oral argument, where the advocates and other judges might deal with it?

And what about the appearance of justice? The American system is opaque. You file your briefs, and you have no idea what happens to them. You can’t even be sure that judges read them. Then you show up for oral argument with your client, who says afterward: “The judges didn’t say much. What are they thinking?” Or he says, “Their questions showed that they already decided the case before the hearing began! What was the point of oral argument?” Good questions. Usually, the case was decided in chambers, before they took the bench. And when you get the opinion, you might suspect that it was written by research attorneys – not the judges. One commentator called American appellate practice “invisible.” Not the best way to garner public respect for our judicial system.

In the U.K, however, advocate, client, and the people can watch the judicial mind working through a problem from beginning to end, right in front of them, so the barrister can react and respond to the judge’s thinking – right there on the spot. And the opinion will be written by his honor himself – unfiltered through law clerks. You can’t get much more transparent than that.

Food for thought. But most American appellate judges will probably find such food too foreign to swallow. And then there’s inertia: changing our whole appellate system from writing-based to speech-based would be like trying to turn an aircraft carrier around in a storm.

But maybe there’s a way to try it out.

During my research for this piece, I learned to my surprise that one California appellate court actually did adopt a modified version of the British practice. In 1981, the Third District Court of Appeal (in Sacramento) selected a handful of civil appeals (each had very few issues) for an “expedited” program that limited argument in briefs to 10 pages. Oral argument took place 30 days after the briefs were filed – with no limit on how long a lawyer could argue. Most of the lawyers were quite happy with it, because it cut brief-writing time and cut the time needed to prepare for oral argument (because the case was still fresh in their minds), resulting in savings to clients. And they were delighted that disposition time (from filing notice of appeal to ruling) dropped by over 40%. The judges liked it because the briefs were more concise and focused on the one or two issues that mattered, and the oral argument usually did not end up taking more time than the usual 30-minutes allotted for non-expedited cases. The judges found that the oral argument was conducted at a higher intellectual level, and the program did not increase the total time they spent on a case. See Chapper & Hanson, Expedited Procedures For Appellate Courts: Evidence From California’s Third District Court of Appeal, 42 Md. L. Rev. 696 (1983). The program ended not from want of success, but because the judge overseeing it had retired.

Maybe it’s time for another experiment.

by M.A.T. Legal Director Myron Moskovitz