Jacob Sherman and Dr. Nancy Christiansen, Department of English

Introduction

The United States court system faces an ever-growing caseload problem. The issue gets aggravated at the appeals court, where fewer judges face a disproportionate volume of cases. Two approaches have historically been taken to address this burden: selecting more judges and streamlining trial procedures. Critics of the former approach fear that the quality of judges must inevitably fall as more judges are selected (Martineau 1986). While many experts favor appellate level oral argument reform, several at times contradictory theories exist as to where the appellate procedure can best be streamlined without compromising justice (Berman 2001). The prevailing theories focus on the oral argument, arguing either to eliminate, reduce, or even expand its role in the process. Although some courts have given trial runs to potentially more efficient procedures (Mathy 1985), experts hesitate to implement reforms without anticipating their consequences as much as possible.

Purpose

This thesis analyzes the efficacy of appellate level oral argument through empirical textual analysis. Specifically, it analyzes the judges’ comments to evaluate the extent to which courts already favor one side over the other before the oral argument begins. It also gauges how judges make use of the oral argument by comparing their comments during the oral argument to the issues cited as determinative in the judicial opinion. An understanding both of how judges make use of oral argument time and the extent to which judges go into oral arguments with their minds made up regarding the decision will be essential to articulating the practical function that oral argument serves today. Oral argument reform will need to take these factors into account if it is to successfully trim away non-essential portions of the procedure and enhance the essential ones.

Methodology

I selected six cases related to religious freedom on grounds that such cases would be more likely to involve rhetorically charged statements. Limiting my selection of cases to a particular subject made the cases selected as comparable as possible, theoretically putting the rhetorical tendencies of the judges in greater contrast between cases. With the cases selected, I then transcribed the oral arguments and began the analysis. The analysis involved two parts: content analysis and style analysis. The content analysis involved consulting the judicial opinion to identify which issues determined how the court ruled. Once I had identified these issues, I then went through the oral argument, identifying the issue that each comment related to. I recorded these data in a basic table. I then conducted a style analysis, indicating whether each comment was constructed favorably or unfavorably to the currently arguing lawyer. I enumerated these favorable, unfavorable, and neutral comments in a table as well.

Conclusions

Given these findings, I have three conclusions regarding appellate court reform. First, that in many cases, oral argument does not appear to influence the ruling; second, that in most cases, at least one issue relevant to the ruling does not come up in a given side’s argument; and third, that analysis on a larger scale would likely reveal more significant trends in the modern oral argument.

Problems Encountered

This thesis serves as a sort of preliminary experiment with a new methodology, since the amount of time required to transcribe and analyze a statistically significant volume of cases lies well outside the scope of an Honors thesis. Further complications arose beyond the time-consuming nature of transcribing, however. First, I needed to obtain permission to use legal databases, both to identify similar cases and then to gain access to their judicial opinions. The selection was curtailed by the relative unavailability of oral argument audio files. Audio files have only been kept by some circuit courts, and only for a few years at most. This lack of availability did not limit the amount of cases that I could analyzed, but curtailed the selection significantly.

Recommendations for Further Study

In light of my findings, I propose more extensive analysis of appellate level oral arguments, both on a broader scope and on more specific types of cases. This study relies on an admittedly small sampling of cases, and invites a more statistically reliable follow-up study that includes a greater diversity of cases. In addition, further studies might focus on more specific selections of cases. Studies might focus on the behavior of judges in one specific circuit court, or on cases dealing with a certain area of the law, as this study focused on religious law. These and other variables certainly affect the function and effectiveness of oral arguments, and will be more easily accounted for if they can be measured.