This Blog article is an opinion piece rather than a discussion of substantive law as is the case with almost all of our Firm’s Blog articles. In this brief article we will discuss a somewhat troubling trend in California jurisprudence: the Closing Brief that judges increasingly are prone to order as a conclusion to court trials. In this article we will argue that much of the time this is an inefficient, costly, and time-consuming alternative to traditional oral closing argument.
In jury trials courts are required to allow oral argument by counsel at the conclusion of the trial. In closing argument, the opposing attorneys argue the case directly to the jury. Closing argument of this sort is universally regarded as one of the most important parts of the trial. It is where the attorneys “put it all together” to enable the jury, armed with the Court’s own jury instructions, to decide the case. Indeed, some attorneys refer to “closing argument” as “summation.” Closing briefs virtually never are applicable to a pure jury trial.
Many trials are not jury trials. As a matter of law many trials are conducted solely before a judge as a court trial. Probate trials, for example, may not be tried before a jury. Many other types of trials, such as trials in equity, also do not entitle the litigants to trial by jury. Even in cases where juries are authorized it is not uncommon in some cases for the sides to stipulate that the matter will be tried as a court trial. In these trials the judge sits as both the finder of fact and the finder of law. This contrasts with a jury trial, where the jury is the finder of fact and the judge instructs the jury on the pertinent law by way of the court’s jury instructions. In a court trial the judge is not even required to allow closing argument although in our experience very few judges do not allow the attorneys the opportunity for such. Incidentally, most binding arbitration hearings are generally tried in a manner that is almost the same as a court trial.
In recent years Buffington Law Firm’s litigation team has noticed a troubling trend whereby in court trials the judges are increasingly instructing the sides to file “closing briefs” rather than ordering the case to conclude by way of closing argument. This used to be rare — it is increasingly becoming the rule in California court trials. When this occurs the Judge will typically order the plaintiff or petitioner to file a closing brief, with the defendant or respondent ordered to file their brief a few weeks later. Usually the plaintiff or petitioner then may file a rebuttal brief, based on the notion that that side has the burden of proof. In such trials the court almost always does not allow actual oral closing argument.
This trend is not desirable. While some very complex cases, involving tricky or unusual issues of fact or law may justify closing briefs, we believe that most of the time justice would be better served by the court hearing oral closing argument rather than ordering closing briefs. Before we elaborate on why we hold this opinion, we acknowledge that closing briefs have some justification. Certainly, closing briefs allow a more relaxed and perhaps more thorough analysis of the case. A written brief can weave arguments of law and fact more thoroughly than oral argument may entail. It is not difficult to see why judges increasingly are asking for closing briefs.
However, closing briefs have many disadvantages. Firstly, they are orders of magnitude more expensive for the clients. Lawyers naturally feel compelled to produce a polished, powerful brief that extensively presents cites from the record including the reporter’s transcript. This means a lot of billable hours. This cannot be prevented. Lawyers are going to go “all in” in producing their closing briefs. Additionally, a trial entailing closing briefs will take several months longer for the court to decide. So the parties must typically wait much longer for the Court’s decision. While closing argument usually occurs immediately after the two sides rest their cases, the judge may not receive closing briefs for months. By this time the case is less fresh in the judge’s mind. Even the attorneys may not remember the case as keenly if they write their closing briefs weeks or months after the trial. Thus, when courts require closing briefs the decision is delayed, the cost is greater, and sometimes the minds of the judge and the attorneys are less fresh.
We believe that there are better alternatives. A common example that we used to see a lot of was that the Judge would hear oral closing argument at the immediate conclusion of the trial. The Court would then render its decision, either on the spot or shortly thereafter. The Court could then direct the prevailing party to prepare a proposed statement of decision which would constitute the official Statement of Decision. While this sometimes involved some wrangling by the attorneys over the statement, in our experience this was minimal, and far less time consuming or expensive than the whole closing brief process.
Another alternative, of course, is that the Court itself can publish its statement of decision after hearing oral argument. In Britain, it was once traditional in many courts that the Court would articulate its statement of decision for the record immediately following argument. Nowadays in California courts usually publish these on the internet a short time after the trial. Once again, this process is much quicker and cheaper than the closing brief process.
Whether to hear oral argument rather than require closing briefs is the sole decision of the trial court. We respect this. But we believe that in the vast majority of trials, considerations of cost and timeliness make traditional oral closing argument the best process for concluding court trials.