As a post-script to the blog article of earlier this week, What! No Oral Argument?, a recent unreported case makes the point. In the blog, the Palombi case was addressed.  In that case, on review by the Appellate Division of a series of post-judgment orders in which the trial judge declined to grant oral argument, the appellate court upheld the decision denying oral argument. In so doing, the court held that while oral argument should usually be granted on substantive motions, where the motions, on the face of the filed documents, failed to make out a prima facie case (that is, even if the judge believed everything in the papers, they were insufficient to grant the relief requested), oral argument was not necessary.

We restated the history of the oral argument tension in New Jersey in which oral argument had been denied so often in cases in which it should be been held, and opined that while the decision may well be technically accurate, publishing the case sends an incorrect message to the bench and the practicing bar.

Now enter the recent case of Dehere v. Booker, decided July 13, 2010, unfortunately unpublished. In that case, the trial judge had not granted a request for oral argument. In reversing, the Appellate Division said

“Defendant requested oral argument when he filed his notice of motion, and he was presumptively entitled to oral argument under Rule 1:6-2(d) and Rule 5:5-4(a). See also Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997) ("This was obviously a substantive motion that the parties should have been allowed to argue orally as a matter both of due process and the appearance of due process."). In addition, Rule 1:7-4 requires a court to "find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." Unsupported conclusions are insufficient. "Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). That did not happen here.

 

So, coupled with the fact that the motion judge did not carry out the responsibilities of finding facts and stating conclusions of law, a basis for the reversal was a failure to grant oral argument.

Unfortunately, years after the rules of court were amended to provide that oral argument should normally be granted on substantive motions, judges persist in ignoring the rules and denying a full right of hearing to litigants.