In the article that was published in the March issue of this year, I wrote some considerations about the topic of oral arguments especially in the area of extended trials, as it has been set forth in the CPC / 15. However, my experience as an attorney – which, except for the internship period, has already gone beyond thirty (30) years, mingled with a brief exercise in the judiciary, – about five (5) years at the Regional Electoral Court in one of the vacancies reserved for jurists – increasingly leads me to reflect in a broader and more generalized way about what is, or should be, one of the most relevant manifestations of orality.
Perhaps it would be better – at least, more prudent – to write about a less thorny subject with less potential for controversy. Even though it is not always recognized, and maybe precisely because it seems easier to avoid the subject, there is undeniable tension – cordial or not that much – existing between judges and attorneys in this regard: some willing to be heard, but others not always so open or prepared to hear. However, I am convinced that if the subject is approached – as much as possible – in a technical, peaceful and constructive way, the result can be positive and there may be some contribution, however little it might be, to a more open dialogue between professionals who, after all, are presumably trying to do their job as well as possible. It may be helpful if we consider, in a sense, that we are all in the same boat and that we are all supposedly right. It shall not be exactly the “collaboration” that the CPC mentions, but it will be, at least, a way of seeing the phenomenon from another person’s view.
The first consideration – which is absolutely essential as an antidote to avoid any misunderstanding – is that generalizations are dangerous and potentially unfair to both sides. There are good and bad professionals in any field. More than that: there are talented professionals who are not on their happiest days, but, on the other hand, there are bad professionals who, at least occasionally, redeem themselves. In this particular case, the group of those who want to speak is more numerous, and, therefore, their performance tends to be potentially more burdensome – in the context of the amount of work to be done – if compared to the group of those who need to hear. On the other hand, the group of those who are supposed to hear has the power and this is, in any circumstance, an element that increases their responsibility. Anyway, and going back to the starting point: virtues and imperfections that can be identified in this field should not be handled indiscriminately, on both sides. In this field, as well as in others, accusing is not usually productive. This does not prevent some findings from being taken for granted, and it should be repeated that, the goal is to improve the dialogue between those who somehow need to work together. Some of the points that come to my mind in this limited space are as follows.
a) An oral argument is often preceded by the submission of memorials to the rapporteur or to the members of the panel of the appellate court, who are expected to be open to it – and this needs to be said – since there is a minority that, unfortunately, simply refuse to receive the lawyers, or that say they are not available to do so, or that come up with a variety of excuses and obstacles. Thus, lawyers really need to pay attention to the fact that if their admission has already taken place, the oral argument could become redundant, what, besides being inappropriate, also tends to be unproductive. However, the situation may be more complex than it may seem at first glance: it may have happened that the lawyer had had access to the rapporteur, but not to the other members of the panel; it may have happened that the ex-adverso lawyer had not handed memorials and is going to present an oral argument; it may have happened that the lawyer who succeeded in being admitted is not exactly the one who will argue, and so on. Therefore, if on the one hand the lawyers ought to be aware that repetition can be counterproductive and, for that reason, should be avoided, on the other hand, there should be some margin of tolerance on the part of the judges for situations like these and others that are analogous, and for which it will not be unreasonable to accept that orality can be concomitant in the judge’s office as well as in the trial session.
b) Orality should be an effective instrument in the adversary system. More than what is written, what is spoken in an objective, concatenated and consistent way tends to produce a better effect, especially in a context of professionals with heavy workload. Thus, it is understandable the aversion that judges have to people merely reading a text that was previously written. On the other hand, in an ideal world, oral arguments could be somehow led by the judges to the points they actually consider to be relevant (assuming that there are different subject matters in the case). This would make oral arguments more productive and the suggestion, in addition to being in accordance with the spirit of the rules of articles 9 and 10 in the CPC, corresponds to the experience of what I have seen and of what I have already been told at the courts from other countries (not to mention arbitration).
c) A variation for what was proposed above would be the absence of an oral argument in case the lawyer of the case would defend a point that had been supported by the vote of the rapporteur, who had known beforehand that there were not any divergences among the other members of the panel – and this is lawful, considering that sending the votes in advance is allowed. Technically, there is nothing to be refuted: if the decision that is about to be given corresponds to the total gain that the party could expect, the exercise of the adversary system, by means of orality, really becomes innocuous and is dispensable. This does not suggest any disrespect in relation to the lawyer; on the contrary, the success was presumably a result of the good job that the lawyer had done until that moment (whether or not memorials had been handed). Some care is necessary because the favorable decision to the party whose lawyer wants to argue is not always as complete as possible: the court might, for example, grant a party’s petition to annul the decision, but the party could insist on a favorable judgment on the merits, and, then the annulment would be only subsidiary (and not a logical antecedent). There may be relevant discussions about accessory chapters (attorney’s fees, for example). The attorney should then be aware of such issues, without letting it, under the circumstances, sound like “you pushed your luck”…
d) The success of an oral argument – without properly thinking about its connection with a favorable result towards the merits of the appeal – will depend on what, how and how long people will say the things that need to be said. This way, objectivity and clarity are indispensable, but probably the most effective would be to try to demonstrate how, in that case, the solution recommended is the most appropriate to the Law and, therefore, it is the fairest. It is unquestionable the weight of jurisprudence in the formation of conviction, but extensive references to other decisions at that time tend not to be productive. At this point, the lawyer should be greatly aware of to what extent certain questions of law are already known by the panel to which the lawyer will perform the oral argument. For any human being, it is potentially boring to listen to considerations that are supposed to be new, when they are, in fact, well-known. And, as far as the time is concerned, balance and reflection on both sides are desirable. The challenge to the speaker is to be objective without being hasty because haste can hinder communication. For those who are supposed to hear, the initial and general recommendation that is sometimes heard from the Chief of the appellate court – urging attorneys to be brief in face of the existing amount of work – may even be done. However, in this case, coherence is a synonym of respect, and, therefore, for those who care about other people’s time, punctuality to start the session, for instance, is critical.