Wednesday, January 17, 2007

Oral arguments in Texas appellate courts in their "death throes"

Over at Texas Blue, former 2-term 8th Texas Court of Appeals judge Susan Larsen decries the precipitous decline in oral arguments in Texas appellate courts over the last several years.

This seldom-discussed subject deserves much more attention than it usually gets, and is a big reason why I think more focus should be placed on the 98 appellate judges' seats during the next election cycle. Writes Larsen:

In Texas state appellate courts, we still brief cases. But oral argument - that give-and-take between lawyer and judge, that question-and-answer, the only live interaction between judges who make law and representative of people whose lives, liberty, and fortunes may be at stake, that essential part of the process - is in its death throes. Courts of appeals are not required to grant oral argument, but may decide a case without it “if argument would not significantly aid the court in determining the legal and factual issues.”

Some statistical support for this sad development: in 2001, the fourteen intermediate Texas courts of appeals disposed of a total of 12,474 cases. They granted oral argument in 13.9% of those cases (1,729 arguments). The highest percentage of arguments was granted by the El Paso court at 32.2%, followed by the Houston 14th Court at 26.2%; the lowest was Dallas at 2.3%. You may conclude from these numbers that the courts of appeals did not spend an oppressive amount of their work week listening to the live presentation of their cases. Apparently, the courts did not share that conclusion.

Fast forward to 2005, and the number of oral arguments has dropped precipitously. That year, the courts disposed of slightly fewer cases, at 12,058. They granted oral argument in only 8.9% of cases (actually up a little from the 2004 all-time low of 7.9%). In 2005, the Eastland court of appeals granted the highest percentage at 16.7%, followed by El Paso at 16.2%; Corpus Christi granted only eleven arguments that year, out of almost a thousand cases decided, for a total of 1.1% (for the six sitting justices on that court, this was less than two arguments per year per judge).

You may be asking, why should I care? (Assuming, of course, that this little column has not lulled you into a much-needed power-nap.) My short answer to you is this: judges serve the people. They are not direct representatives as are legislators, but it is their job to decide disputes among real people, not just theorize with briefs and transcripts and law books and computer research. Listening to the representatives of those people, even for fifty minutes, focuses the minds of the judges on the dispute. It gives the entire panel, not just the single judge writing the opinion, a period of time to contemplate that case alone; asking questions, mulling through logical consequences, and doing their job. It promotes discussion amongst the judges, highlights their differing outlooks, enhances critical thinking and results in better law. More than that, oral argument is the only opportunity the public has to observe the decision-making process at work; every other aspect of appellate opinion-making is secret.

This slow death of oral argument is regrettable, and reversible. Ask your judges about it; ask candidates for the courts of appeals about it. You are hiring these judges by your vote, and you deserve to know whether they think cases on appeal deserve a thorough discussion in a public courtroom. If judges don’t think this, you deserve to know why not.

Good job, Judge Larsen. Those are stunning declines over a very short period of time - Texas appellate courts are actually handling fewer cases than just a few years ago, but are MUCH less likely to consent to hear oral arguments.

I guess if you're just going to be a paper shuffler rubber stamping every prosecutorial motion with an affirmative ruling, why bother with the pretense of interrogating the details of the case?


Quismada said...

I think the operative word in this article is "rubber stamping." If the decision is made prior to the case being presented why would they even bother to hear oral arguments? I'm surprised they don't have carpal tunnel syndrome from slamming that damn stamp down so often.

Anonymous said...

The CCA needs to be cleaned out. You mentioned rubber stamping, this court is the worst to rubber stamp, next to some of the judges in Harris Co. who are in cohoots with the CCA. There is nothing fair about our judicial system and Texas is by far worse than any foreign country in court fairness.

Let's take the rubber stamp away from some of those who are getting carpal tunnel, I don't want to have to pay for them to wear a brace or have surgery to release the nerve. Tell them to move on and get a real job.

Anonymous said...

The 1st CCA needs to be cleaned out. The 14th is slightly more fair, but the 1st CCA just reeks of injustice.

Remember there are four judges who come up for re-election in 2008, and I am so sorry we missed ridding the 1st of one of the worst judges by just a few votes, but look at the courts and rid it of all incumbents. That should take care of some of the problems. Some elected officials get in positions and this is their job and they have security and don't care what or who they hurt.

Watch in the next election, if you "I" beside a Judges name, move on to hopefully his/her opponent.

Anonymous said...

Worse than simply rubber stamping, the briefs are read and opinions written by third year law student interns. Did we elect these people who have never been licensed or tried a case? The public perception of learned judges in black robes soberly considering and the belief of citizens that everyone is protected by their right of appeal allows them to believe in the justice of the system. Until it happens to them....