Oral argument and PCAs.

Originally, I intended to send this letter to the judges of the Third District Court of Appeal, where the bulk of my appellate practice is. However, after reading Richard Friedman's letter in the April 15 News on PCAs, I thought it might be a good time to send it to the News for wider dissemination.

As regards oral argument, it is my belief that most appellate panels have made their decisions prior to oral argument, reducing oral argument to a charade. Indeed, if the panel has read the briefs and researched the law (i.e., at least reviewed the law clerks' assessments), there should be no argument, for nothing at the appellate level can change the facts of the case. Similarly, seldom does the applicable case law change just prior to oral argument, in which case a motion to supplement may be filed.

The better practice would have the appellate court request counsel to provide additional development of a particular issue, or brief an issue not presented but of interest to the panel. The court would then receive better-researched, more thoughtful and even, perhaps, enlightened responses, something which is usually impossible at oral argument.

I recall my first argument in the early '70s before the First District Court of Appeal as a certified legal intern with the appellate division of the public defender. I argued; the assistant attorney general argued; then when I stood up for rebuttal, the judge in the middle explained to me that I had every right to present rebuttal but didn't necessarily have to. In other words, "Son, you're way ahead, don't blow it now." I got the message and waived rebuttal.

Other appellate judges have stated that if an attorney thinks the case is sufficiently important, the court will try to accommodate a request for oral argument. Indeed, all cases are important to the litigants--a sentiment which their attorneys should share. The fact that an attorney does not request oral argument should not in any way diminish that feeling, nor convey an impression that the attorney does not fully believe in the cause of his client or the strength of his...