Class Participation and Justice Alito

A story on yesterday's AP wire reports on Justice Alito's remarks at the University of Alabama. (HT HB.) Alito remarked on how hard it can be for him to get a word in at oral argument, and played voice samples Justices Breyer and Scalia, including one by Breyer about the raccoon who broke into his garage. (Note: Why can't the oral arguments in my court be more like that?) Alito also said there can be no substitute for oral argument in helping judges get to the issues. Neither written filings nor modern technology will be able to replace it.

I found this somewhat surprising because oral argument seems to have increasingly become a lost art in most district courts, with many judges eschewing extended oral argument altogether. Also, more and more appellate courts, federal and state, decide cases on the briefs alone, and this isn't only because of volume, but sometimes because the judges think the cases just aren't "interesting" enough. I believe Alito's point is largely true, however, as I've found I can tell judges important points while standing in front of them that I wouldn't have thought of but for their questions. I also think this is an argument in favor of the Socratic method we despise so much in law school. The ability to regurgitate "what this case is about" when called-on without warning isn't just a form of upper-middle-class torture. It's a skill that lawyers actually should learn, and that will come in useful. Now, you could argue that you'll be a transactional lawyer your whole life, and don't need that skill, but then why do criminal lawyers have to take contracts? It's something central to the legal canon, and arguably should be taught to all prospective lawyers. Perhaps the Socratic method isn't the best way to learn it, but it beats hour-long lectures only interrupted by "the volunteers."