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.