To Argue, or Not To Argue
These days the focus of appellate advocacy is on the writing skills of an attorney: framing the issues, arguing in the briefs. Once upon a time, however, there was much more emphasis on the oral arguments before the court.
Recently, we represented one of numerous defendants responding to an appeal by a singular appellant with a fairly sympathetic case. On repeated conference calls, counsel argued over the prudence of attending oral arguments. Some argued that appearing for oral arguments would only give appellants another opportunity to argue in support of their brief, which they did not believe was particularly strong. Certain counsel went so far as to posit that appearing for oral arguments was offensive to the court and counsel as it assumed that the arguments were not laid out clearly in the written briefs.
Others (including myself) argued that we would never waive oral arguments -- that it was an opportunity to enhance arguments made in our brief and respond to questions by the court. As much as I would like to believe that my written briefs are all the information the justices need to decide a matter, I felt it was arrogant to assume the court would not have any questions on our position.
In 2002, Charles A. Bird of Luce, Forward, Hamilton & Scripps LLP of San Diego and Webster Burke Kinnaird (current employment unknown) surveyed appellate court justices and attorneys at California’s Fourth Appellate District to determined their preferences in brief writing, presentation to the court and oral arguments. (Charles A. Bird & Webster Burke Kinnaird, Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court, 4 J. App. Prac. & Process 141 (2002).) Their survey found that most justices agree that effective oral arguments aids in a well-reasoned decision by the court. The court, however, divided a bit on the issue as to whether justices make up their minds on important points during oral argument. Id.at 146-147.
Recently, Justice Carol Corrigan of the California Supreme Court was quoted as saying, "I really enjoy arguments. It's an opportunity to test our views against the positions taken by the advocates. It also can help identify the basis for a middle ground resolution if there is a split for the justices." (Corrigan Leans to the Right on Bench, The Recorder, December 10, 2007).
In 1977, the Honorable Irving R. Kaufman, who was at the time, Chief Judge of the U.S. Court of Appeals Second Circuit, spoke at the Milton Handler lecture series on the role of oral argument in a case. He is quoted as saying, “An oral argument is as different from a brief as a love song is from a novel. It is an opportunity to go straight to the heart!” (Kaufman, Appellate Advocacy in the Federal Courts (1977) 79 F.R.D. 165, 171).
It’s a debate that has raged for quite some time; but, there seems to be no true substitute for appearing before the court – in person – to advocate on behalf of your client. Whether you are there to answer questions from the court, clarify arguments in your brief, respond to new arguments made in a reply brief, or to dispute a tentative decision rendered by the justices; standing before the court has not lost its purpose nor its effect in our judicial system.
Any thoughts?
Kim:
Don't waive oral argument. A couple of years ago my wife was representing a respondent in the first district. When oral argument was set, she received a letter stating that she would be arguing first. I told her that they do that when the bench brief says reverse. Sure enough, at argument the justices went after her, and, it became clear pretty quickly that they did not understand what had happened at all. After she corrected their misconceptions, one of the justices actually threw the bench brief aside. Result, affirmed.
Robert Seeds
I agree - particularly after attending some classes given by justices - and after a bailiff at a certain court told me "never, ever, waive oral argument."
This is what the "inside view" is (according to the bailiff who watched oral argument over, and over): First, the hardest questions may come from the one justice who is searching for yet another argument in support of your case. This is great news for those moments when you are "up there" and get hammered. The hammerer may be actually on your side.
Second, you may just not have been quite as clear as you would have thought - and they are giving you one more long shot.
Third, you may argue, they are relatively silent, then they hammer the other side and basically, "you win" is written all over the walls in invisible ink.
I used to avoid oral argument, but now, I figure - unless the opponent is in pro per, better to show up and give it the best shot possible.