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I am seeing a continued push by members of the judiciary for more "paper based advocacy". I think this is a really dangerous trend. Limiting physical contact, I get it. But why sacrifice discourse on points of contention? I've been there. It matters. https://twitter.com/Ali__B/status/1263573910676803585
I will give just one example. I was on an appeal last year where despite my "paper submissions", I was confronted by a panel that was convinced about a particular fact. They were wrong. I went through repeated questions at the hearing and eventually persuaded them of this fact.
Without oral submissions, I would have received the judgment - and lost (I didn't) - because the Court would have unanimously reached a conclusion on a point that they did not see (in fairness, it was a complex point).
I didn't even know this was an issue until the hearing - when the panel raised it with me immediately. It took awhile, but they came around. This was not the first time; nor was it the last. Matters of importance often only crystallize at an oral hearing.
Moreover, I'm eager to know if the judges who seem keen to dispense with oral argument are going to allow the appellants to file a reply factum. How else are appellants supposed to address new/incorrect arguments made by the respondent?
