Same-sex marriage coming to Utah

[imanihonjin]

Yeah, I admittedly have zero context here--that's the first time I've ever listened to these. I guess if these are tired arguments that have already been discussed ad nauseam, then I understand him cutting him off. Still, why ask the question(s)?

I guess i had this idea that attorneys make the arguments and the judges simply judge them, with questioning to clarify the points the attorneys are making. Is that not how it's supposed to happen? Or are judges allowed to "cross examine" attorneys? (Honest question...I have no idea)

Oral arguments are all a pony show. In my two years of clerking, I don't ever recall the judge I worked for giving any weight to oral arguments. We discussed arguments in the briefs ad nauseam (I guess oral arguments were really continued arguments contained in the briefs) but oral arguments were never discussed.

[TripletDaddy]

Oral arguments are all a pony show. In my two years of clerking, I don't ever recall the judge I worked for giving any weight to oral arguments. We discussed arguments in the briefs ad nauseam (I guess oral arguments were really continued arguments contained in the briefs) but oral arguments were never discussed.

ER's description is more fitting for a trial by jury.

I'm guessing what you describe is going to be more the rule than the exception. Both sides benefit from taking the time to craft a well-written brief, supported by case law, rather than relying on the ability to argue random questions from the hip while standing at a podium. By the time oral arguments roll around, the issue has mostly been settled (again, see Posner).

[Donuthole]

Oral arguments are all a pony show. In my two years of clerking, I don't ever recall the judge I worked for giving any weight to oral arguments. We discussed arguments in the briefs ad nauseam (I guess oral arguments were really continued arguments contained in the briefs) but oral arguments were never discussed.

Sounds like you worked for a stupid judge. While any good judge will be leaning (perhaps heavily leaning) one way or another heading into oral arguments, a judge who has never once been persuaded by oral argument is probably a judge who shouldn't be on the bench.

[Pheidippides]

Sounds like you worked for a stupid judge. While any good judge will be leaning (perhaps heavily leaning) one way or another heading into oral arguments, a judge who has never once been persuaded by oral argument is probably a judge who shouldn't be on the bench.

Often at SCOTUS the oral arguments will indicate a decision one way and then the opposite will happen. It's dangerous to read too much into it (although that's exactly what I'm doing, mostly because I personally think that there are no good arguments against gay marriage).

[imanihonjin]

ER's description is more fitting for a trial by jury.

I'm guessing what you describe is going to be more the rule than the exception. Both sides benefit from taking the time to craft a well-written brief, supported by case law, rather than relying on the ability to argue random questions from the hip while standing at a podium. By the time oral arguments roll around, the issue has mostly been settled (again, see Posner).

That's right. I should have clarified that in cases where the judge is deciding the case, oral arguments are a pony show. In a jury trail, the arguments of counsel can play a major role in swaying a jury's decision.

[TripletDaddy]

Sounds like you worked for a stupid judge. While any good judge will be leaning (perhaps heavily leaning) one way or another heading into oral arguments, a judge who has never once been persuaded by oral argument is probably a judge who shouldn't be on the bench.

would you agree though that most judges come out leaning? what sort of overall weight would you give to oral arguments in your experience? how influential are they?

[TripletDaddy]

Often at SCOTUS the oral arguments will indicate a decision one way and then the opposite will happen. It's dangerous to read too much into it (although that's exactly what I'm doing, mostly because I personally think that there are no good arguments against gay marriage).

Not any non-religious ones, anyway.

[Donuthole]

Often at SCOTUS the oral arguments will indicate a decision one way and then the opposite will happen. It's dangerous to read too much into it (although that's exactly what I'm doing, mostly because I personally think that there are no good arguments against gay marriage).

Right. I'm simply saying that a judge who has never once been persuaded by oral argument (which is actually a less-stringent threshold than imahojim's former employer, who apparently never even weighed the oral argument) is probably a judge who is not listening. I understand that 99% of the time the judge has his mind made up and ends up ruling that way. But good legal minds can be persuaded away from their inclinations every once in a great while.

[imanihonjin]

Sounds like you worked for a stupid judge. While any good judge will be leaning (perhaps heavily leaning) one way or another heading into oral arguments, a judge who has never once been persuaded by oral argument is probably a judge who shouldn't be on the bench.

Why would any good attorney make any novel argument in oral arguments that he/she hasn't thoroughly presented in writing? It is rare that something is ever said in oral arguments that hasn't already been over analyzed in writing by the attorneys in a proceeding. Like I said, oral arguments are a pony show and only serve to regurgitate arguments that have been made and countered from every angle in briefs.

[Donuthole]

would you agree though that most judges come out leaning? what sort of overall weight would you give to oral arguments in your experience? how influential are they?

The written argument certainly carries the majority of the weight. Even the vast majority. That said, sometimes written argument can be misread and oral argument can shed additional light on the written argument. Sometimes epiphanies happen during oral argument (either for counsel or for the judge). To say that in two years a judge never once even factored the oral argument into his decision leads me to believe that judge is not doing his job. Oral argument alone won't win many cases. It won't win most cases. But it can be a factor in some.

[Donuthole]

Why would any good attorney make any novel argument in oral arguments that he/she hasn't thoroughly presented in writing? It is rare that something is ever said in oral arguments that hasn't already been over analyzed in writing by the attorneys in a proceeding. Like I said, oral arguments are a pony show and only serve to regurgitate arguments that have been made and countered from every angle in briefs.

I'm speaking from a trial-court perspective, and perhaps you're speaking from an appellate court perspective. There are differences, but my point stands. A good attorney wouldn't make a steady diet of it, but no good attorney should be scared to make a novel argument at oral argument.

I understand your position, I just think you're overstating it. Any by overstating it, you're weakening your point. Oral arguments are not the foundation of legal decisions. But they can occasionally be a factor.

[imanihonjin]

I'm speaking from a trial-court perspective, and perhaps you're speaking from an appellate court perspective. There are differences, but my point stands. A good attorney wouldn't make a steady diet of it, but no good attorney should be scared to make a novel argument at oral argument.

I understand your position, I just think you're overstating it. Any by overstating it, you're weakening your point. Oral arguments are not the foundation of legal decisions. But they can occasionally be a factor.

Whether I am overstating my point or not is irrelevant. I am speaking from my own experience. Never, not one single time, did we discuss oral arguments. I was present for some, and others I read the transcript as part of the process of drafting opinions and I never recall thinking, huh, that was a good point that hasn't been considered eleventy billion times in the briefs. So you can discount it by saying the judge was dumb or that I am overstating blah blah blah, but it was certainly my experience while sitting in chambers.

[Northwestcoug]

After reading many Imanihonjin's posts, I would tend to agree that oral arguments are not very persuasive...

[imanihonjin]

After reading many Imanihonjin's posts, I would tend to agree that oral arguments are not very persuasive...

I know you were attempting a witty jab, but that doesn't even make sense.

[Northwestcoug]

I know you were attempting a witty jab, but that doesn't even make sense.

Eh. It's early for me. I tried.