Volumes have been written on the how, what and whys of oral argument before an appeals court. The truth is: the appellate attorney’s approach depends on several factors. The dynamics and strategy of oral argument rest on the type of case and in which speciﬁc appellate court the case is heard. That is, is the case in state or federal court; is it a civil or criminal matter; is it a felony or misdemeanor; if civil, is it a limited case (below $25,000), or an unlimited case ( $25,000 or more)?
Different appellate courts have different rules as oral argument approaches. For example, the Ninth Circuit Court of Appeals (federal), in cases that it does not deem suitable for argument, may just issue a ruling after reviewing the briefs. In other cases it may set the matter for argument, and then decide the case on the briefs without argument. A substantial number of cases, however, do get argued before this court.
Some courts give the attorneys an option ahead of time. For example, the California Court of Appeals in the Los Angeles area will send out a notiﬁcation several weeks before the scheduled hearing date asking if the attorneys intend on arguing the case. The attorney must opt in and give a time estimate for argument.
For those cases that do proceed to argument, the attorney must be fully prepared to address all issues, even though the court may only have an interest in one or two issues. When tentative rulings have been issued, however, and when permitted by that particular court, the attorney may want to submit the case on the tentative ruling (so as not to snatch defeat from the jaws of victory) and reserve time to respond to the opposing attorney’s argument. If that attorney has not positively advanced his argument, then it may be best to say nothing.
The attorney must also not take the phrase “oral argument” too literally. After all, if the judges are the decision makers, why would you want to get into an argument with them? The attorney should think of his presentation as an attempt to persuade. The lawyer must carefully listen to the courts’ questions and be responsive. This will enhance the chances of being successful.
[Richard D. Rome has been an attorney for over 35years and has handled over 400 appeals. He can be reached at richrome@aol. com or by phone at 818-994-8761. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article.]