§ 4.2 Argument In the Oregon Supreme Court

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§ 4.2 ARGUMENT IN THE OREGON SUPREME COURT

The basic objectives, strategies, and techniques of appellate argument apply regardless of the court to which you argue. Nearly all of the advice in the previous section about argument preparation and delivery in the Oregon court of Appeals applies with equal force to arguments before the Oregon Supreme court. There are, however, some differences in the work of the two courts, in their internal practices, in the types of cases that they decide, and in their protocols. Those differences will—or at least should—affect how you prepare for argument. In this section, we focus on those differences.

§ 4.2-1 Oregon Supreme Court Internal Practices

At the outset, here are some basics about the court, its caseload, and its internal practices. The Oregon Supreme court consists of seven justices, who nearly always sit en banc. The majority of the court's caseload consists of cases that it has exercised discretion to hear from those that the Oregon court of Appeals has decided. (The remainder consists of cases that the legislature has assigned to the supreme court to hear directly—death penalty, original mandamus, tax court, ballot title, bar discipline, Energy Facility Siting Council, and other cases. See ORAP chs 11-12. Our focus will be on the discretionary-review cases that you are most likely to be arguing.)

Supreme court review is initiated by filing a petition for review, sometimes followed by a brief in opposition to the petition. See ORAp 9.05, ORAP 9.10. Each petition is assigned to one member of the court for preparation of a "petition memorandum." That member reviews the parties' filings, plus the briefs from the court of appeals and the opinion of that court, if it issued one. He or she then prepares a memorandum that summarizes the issues and arguments and offers a recommendation about whether the court should grant review. The petition memorandum is circulated to the other members of the court, who may also review the parties' filings, court of appeals briefs, and so forth.

The court meets twice monthly to confer about pending petitions for review. At that conference, the focus tends to be on the nature of the issue and whether it is the sort that warrants the attention of the supreme court. Whether the court of appeals decided a case correctly is an issue that the justices discuss, of course. But it is not the controlling consideration in deciding whether to grant review. See ORAP 9.07 (setting forth criteria...

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