The Legal Intelligencer reports that only 17.5% of federal appellate cases decided on their merits were disposed of after oral argument in 2015-16, the most recent statistical year available. Put another way, nearly five out of every six cases that are filed in the U.S. Courts of Appeal are decided without any sort of oral hearing. That is a significant drop: ten years ago, nearly 26% of cases received an oral hearing before disposition. Twenty years ago, the number was better than 40%.
The decline in hearings at the appellate level is, unfortunately, representative of a larger trend. A few years ago, Judge William Young (D. Mass.) and I examined the time that federal district judges spent on trials and courtroom hearings — a statistic we called “bench presence” — and found a year-over-year decline from FY2008 through FY2013. By 2013, federal district judges — our trial judges! — reported spending about only 2 hours a day on average in the courtroom.
There are many explanations for the decline in hearings, some better than others. There are also important differences between the federal district and appellate courts. But the drop in oral argument and courtroom time generally is a loss for the public and for the court system at large. As Judge Young and I explain in detail here, bench presence increases transparency, public trust, and legitimacy in the court system. Moreover, bench presence need not be in tension with efficiency: several district courts across the country have figured out how to encourage oral argument and still resolve cases and motions promptly.
The Legal Intelligencer article recognizes that attorneys are partially to blame for the decline in hearings, especially to the extent that lawyers just rehash what is already in their briefs. But that is not a reason to avoid argument; it is a reason to improve it. Law schools, practicing lawyers, and the courts should shoulder the responsibility of improving oral argument technique, lest it disappear completely.