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Gagging the Lawyers

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 12/6/2004 3:11:37 PM
Last Updated: 12/6/2004 10:15:05 PM

In New Jersey, attorneys are arguing for the right to argue.  Right now, there is a proposed rule change that would eliminate oral argument in all non-appellate civil cases.  Let’s be specific about what is being discussed.  When attorneys are litigating a case, there are motions. These are requests for the court to do some thing.  The movant is the person asking for the court to do something; the respondent is the person who opposes the motion.  Usually, motions are "briefed."  Movant and respondent each write a paper, citing to legal authorities, to support or oppose what is being asked for.  Argument usually occurs at hearing, after all briefs have been filed.  The court now has the option to limit or prohibit oral argument.  The proposal would eliminate oral argument in all cases of motion practice and allow it only in special circumstances, by order of court only.

"Many judges feel that oral argument to the bench is redundant and a waste of time.  Lawyers are fighting for what they describe as the right to be able to elucidate nuance in these cases, or to directly answer any court’s questions that exceed the scope of the written briefs."

Many judges feel that oral argument to the bench is redundant and a waste of time.  Lawyers are fighting for what they describe as the right to be able to elucidate nuance in these cases, or to directly answer any court’s questions that exceed the scope of the written briefs.  I have thought about this a little, and I think that oral arguments should be limited in non-appellate civil matters.  The courts have clogged dockets now; anything that helps to streamline the decision making process ought to be warmly welcomed.

What would be lost?  Attorneys who are poor writers but great oral debaters would be less successful.  Attorneys who write great briefs and are organized will see better results, even if their verbal debating skills are not so great.  Judges can read faster than they can conduct a hearing, and the briefs contain the arguments upon which they base their decisions.  This initiative appears to me to be a good thing.  Let’s hope that it spreads nationwide.