Oral argument can be one of the crucial aspects of prosecuting an appeal, although it has been fading from common practice in some jurisdictions to a certain extent. Oral argument is essentially a verbal, in -person presentation of a case before the appellate court considering the appeal that takes place after the parties have filed their written briefs, and it is essentially the final phase of the appeal before the court renders a decision. Lawyers representing each party to the appeal typically have a relatively short block of time, usually 30 minutes or less, to present the central and most compelling arguments they have, and to answer questions posed to them by the appellate judges hearing the case. In some jurisdictions, there is strong pressure from the appellate court to keep oral arguments as short as even 5 minutes or less. This creates a unique challenge for the attorney, especially considering that some of that time will also be taken up with questions from the judges. Typically, the appealing party has their oral argument first, and has the option of reserving some of their time to use after the opposing party has had their oral argument. Judges will sometimes allow an attorney to argue a minute or so beyond their allotted time, especially if it is to complete a particular thought or respond to a question posed by one of the judges, but it is also sometimes the case that the attorney is expected to immediately stop at when their time has run out. Given these various complications and expectations, especially with respect to potentially fielding questions from the judges for much of the allotted time, it is important for an appellate attorney to start their oral argument with a clear, strong statement that effectively summarizes the the most important issues on appeal.
Prior to oral argument, the judges deciding the appeal will read the relevant portions of the transcripts and record of the case before the court below, review the parties’ written briefs, review cases cited in those briefs and do their own legal research. The judges may have already discussed the case and taken preliminary positions on how they are inclined to decide the appeal, and may have even already written a draft opinion. Steering anyone, including a judge, away from an opinion they’ve already developed can be very difficult. Steering the discussion at oral argument toward your stronger points and away from more problematic points being raised by the judges is a very delicate and difficult task. It is important to respond to questions directly, but also direct the conversation back to relevant issues and arguments you have on your side. Understanding the intricacies and practicalities of how the appellate judges and courts operate can be crucial to a successful appeal. Similarly, having some familiarity or knowledge with respect to the appellate judges and their backgrounds can go a long way, especially with respect to preparing for the kinds of questions and issues that may interest each of the appellate judges hearing a particular case.
It is often the case that oral argument will not be scheduled for months after the written briefs are submitted. In that time, the law may have changed is subtle ways as new cases are constantly decided, or even in significant ways. Key cases relied upon in the briefs may have been subsequently called into question by other cases, or even overturned by a higher court or subsequent decisions. It is critically important for an appellate attorney to be up-to-date on the law generally, and as it applies to a pending appeal prior to oral argument. Preparation is key, not only with respect to recent developments in the la, but also with respect to a thorough and deep understanding of the underlying facts of the case and the record in the case on appeal. It may seem obvious, but it is easy for any appellate attorney to become overly focused on the nuances of the law at the cost of losing focus on the realities and details of the case itself. At the end of the day, appellate courts, like all courts, are charged with determining the just result in each case, which is something the technical aspects of the law cannot always adequately capture. Understanding and appreciating the human element, along with a deep understanding of the law as it applies to the case, will make for an impactful and effective oral argument.