September 2022 A Criminal Waste of Space - Oral Argument: Better Than Oral Surgery?

by Justice William W. Bedsworth

If you’d followed any part of my baseball career—which I somehow managed to extend into NCAA Division 1 ball—you would have known I was destined for a career on the bench. You might not have anticipated thirty-five years on the bench, but you would not have been surprised that I would spend most of my career sitting down.

A big-field, no-hit catcher, I caught more ninth innings than firsts in college. The rest of the time I spent riding the pine, warming up pitchers, and trying to figure out how the other mortals managed to hit breaking balls.

I didn’t like sitting down then, and I’m not real crazy about it now. Oral argument is the least favorite part of my appellate gig.

In fairness, that’s largely because the rest of the job is so great. Most of it is spent reading. I’ve always loved reading. My parents introduced me to comic books, the sports page, and the encyclopedia when I was a boy, so I learned to think of reading not as a requirement but as an entertainment.1

And twenty-first century legal briefs can be hugely entertaining. The problems people get themselves into are a constant source of amazement. You work on a couple dozen cases a month and you’ll spend a lot of time saying, “They did what?!?!”2

What’s more, the quality of the lawyering I see is really good these days. Appellate practice has grown from a niche to a specialty. I’m generally reading the work of lawyers who like to write and are good at it.

And after reading the dramas their briefs describe—and puzzling out the application of an increasingly Byzantine legal system that is starting to make the Code of Hammurabi look like Ogden Nash—I get to write about them.

As you may have noticed, I rather like writing.

So you begin to see why I have now cancelled three retirements. My staff, having packed and unpacked their boxes more than Marie Kondo, no longer pays any attention when I talk about retiring.3

But oral arguments are the potholes on this golden road. Oral arguments are hard blanking work. Let me explain.

I remember when I was a boy, asking my dad one night if we could go to the movies. He said, “Not tonight, Billy, I’m too tired.” That made no sense to me. How could you be too tired to go to the movies? All you do is sit and watch.

Well, now I understand how sitting and watching can tire you out.

For the thirty minutes to an hour of oral argument in each case,4 I have to be completely focused. This is counsel’s last shot. If there are things I didn’t buy in the briefing—or didn’t understand—this is the last chance to get into sync.

I spent the weekend or the night before preparing for each of the twelve to fifteen oral arguments I’ll hear this week, and I have to be sharp. I have to convince myself that I understand everything that’s being said. Sometimes that requires courtroom conversation with counsel, sometimes it just requires closely analyzing what’s being said and making sure it matches up with what I thought was being said when I read the briefs. Either way, it’s a lot of intense concentration.

You have to concentrate especially hard on cases you didn’t write. If you’re a panel member but not the author, you have to work harder at oral argument because you aren’t as familiar with the case. And if you’re the author, you have to work harder because you have a greater responsibility to the other panel members. Either way, you’re always trying to work “harder.”

I’m worn out at the end of the day. I watch a lot of baseball on TV, but I seldom see the ninth inning during oral argument week.

That’s not to say the effort isn’t worthwhile. We change our minds on cases every month. And there are often moments of humor.5 But it’s hard work for us.

My favorite oral argument story involves Justice Crosby. I relate it here because I think there are several lessons in it—for all attorneys, but especially appellate ones.

It was my first year on the court and I was sitting on a panel with Justices Crosby and Wallin. It was a case I had written, and when appellant’s counsel reiterated what I had concluded was a fatally flawed argument, I challenged him on it.

It was a case involving a lot of money, this was the key to its resolution, and I was new. I didn’t stop when I should have. The result was a rather lengthy and somewhat heated contretemps.6

Near its end, counsel extended his position further than he should have. Justice Wallin was on him like a duck on a June bug. He pounded at the new hole in counsel’s argument like a fireman breaking up embers with a shovel. The guy tried to recover by stating something that was not in the record.

That brought Crosby into the fray.7 Crosby walked up one side of the guy and down the other. Instead of admitting his mistake, counsel tried to find other facts to inferentially support his new and novel interpretation.

Huge mistake. An impromptu debate with Tom Crosby never amounted to much more than redefining the word “futility.” Crosby was whip smart and his intellectual reflexes were quicker than a cat’s jab. The contest was embarrassingly one-sided.

By the time appellant’s counsel sat down, having been pummeled by all three members of the panel, he was soaking wet and badly bruised. He probably had to burn his suit.

At which point respondent’s counsel got up and started to argue. He hadn’t gotten half a paragraph out when Crosby stopped him. “Counsel,” he asked, “do you really think there is anything you can say that will make things better for you than they are right now?”

Counsel, stopped, thought for a moment, and said simply, “Submitted.”

We don’t get many “Submitted”s these days. A few more would be welcome. As Justice Rylaarsdam used to say, “Thirty minutes, Counsel? Was your briefing that bad?”


  1. I can’t recall the name of the encyclopedia. We couldn’t afford the Britannica. Mom ordered one by subscription that was delivered every month, a volume at a time. When you’re buying books on time, you recognize them as important.
  2. There are times when you can almost imagine them saying, “Hold my beer.”
  3. I’ve pretty much decided I would get less satisfaction out of retirement than I would out of forcing the state to pay to have my lifeless body hauled out of the courthouse. So I just sent out my check to put my name on the ballot for a fourth term. Honest, I hope as fervently as you that I won’t have to do that again.
  4. Oral arguments are longer these days than when I started. That surprises me. I can empathize with the desperation of appellants, who’ve so far been unable to convince anyone of their position and feel the need to expostulate at some length, but I’m always surprised by voluble respondents, who are usually on a winner and whose every word is a chance to stumble in the last fifty yards before the tape.
  5. I try to take advantage of these. I believe relaxed lawyers are better lawyers, so if there’s a chance to ease the tension—“My God, there’s three of them up there, just staring at me”—I take it.
  6. If I give you an especially hard time at oral argument, take solace in the fact I’ll probably regret it later.
  7. Misstating the record is a cardinal sin because it exploits the panel’s greatest area of vulnerability. We can’t possibly know all our several cases as well as counsel know their one so we’re rarely equipped to contradict a mistaken assertion of fact. If you get caught misstating or expanding the record, expect to take a beating.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.