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.
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