Wanna Talk? No, Not Really

Here is a quiz question for you: what branch of Texas government has two uber-divisions in Austin, fourteen intermediate divisions throughout the state, and ninety-eight officials elected for six-year terms?

Readers, welcome to the fast-paced and thrilling world of Texas appellate courts. Those of you who are not lawyers (and even some who are) may need some orientation to the function and purpose of appellate courts. After a trial, when the losing party and counsel are walking down the steps of the stately courthouse (or just the lawyer, if the client has been hustled off to jail) and they say "We plan to appeal," appellate court is where they go next. You have probably seen appellate courts depicted on law-and-order shows: the scenes where the noble prosecutor is standing before multiple judges (usually three, sometimes more), no juries or witnesses, arguing some cutting-edge point of law. Appellate courts exist to perform several functions: (1) correct errors that occurred at the trial level; (2) clarify law that is unclear or unsettled; and (3) enhance uniformity and predictability.

Heretofore, in Texas as elsewhere, the appellate process consisted of two parts: briefing, which is a written explanation of why the trial court did or did not screw up; and argument, where the lawyers present their positions live and in person to the aforementioned judges, who pepper them with questions (or don't), pose difficult hypotheticals (or don't) and generally pay attention to what is at stake. Unless the panel judge is assigned to write the opinion in that case this may be the only time he or she gives it undivided attention.

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.