There has been some recent debate over the value of oral argument in the California Supreme Court. Specifically, Professor Daniel J. Bussel, from UCLA’s School of Law, published a law review article titled, Opinions First – Argument Afterwards questioning whether litigants have a meaningful opportunity to sway the final outcome of a matter with oral argument.
Professor Bussel explains that the justices have “a powerful personal financial incentive not to reconsider the merits following oral argument. The justices’ pay is suspended under California’s ‘90-day rule’ if the Court fails to issue a final decision within 90 days of ‘submission.’” Logic follows that the justices will predetermine the outcome, to a substantial degree, prior to concluding oral argument so that they can issue the final decision in a timely manner. Granted, the justices are free to modify their final decision – Professor Bussel acknowledges this and states that the Court often refers to oral argument before publishing the decision. However, Professor Bussel opines that the majority has already signed onto a written opinion so oral argument in that Court is “a theater of the absurd…” The result is a tremendous waste of resources to the state and litigants and the ideal of due process is tainted.
Associate Justice Goodwin Liu responded in a rebuttal emphasizing that preliminary responses are intended to “enhance” oral argument by highlighting the “key sticking points” in a case. (See How the California Supreme Court: Actually Works: A Reply to Professor Bussel.) Justice Liu emphasized that pre-argument preparation is thorough, but not final. In fact, the pre-argument process brings out the relevant issues for discussion at oral argument. In this way, the value of oral argument is heightened and a final determination is made after the litigants have had their opportunity to address the key issues. Justice Liu readily admits that the ultimate outcome of a case does not often change after oral argument. However, it does happen on occasion. Furthermore, a more common occurrence is a shift in the final vote tally. Justice Liu attributes this to the “fluidity of the Court’s decision-making process” and proof that the justices are not opposed to changing their vote after oral argument, when it is warranted.
The truth may lie somewhere in-between the positions of Professor Bussel and Justice Liu. We have recently addressed this question in our popular Appellate Forum group on LinkedIn and, without exception, everyone, who responded, stated that they would not waive oral argument. It was widely acknowledged that oral argument rarely changed the ultimate outcome, but the general sense was hopeful that there was a chance, however slim it might be, the justices could be swayed and this opportunity should not be wasted.
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