Oral Argument Before the Second Circuit
| Jurisdiction | United States,Federal |
| Publication year | 2021 |
| Citation | Vol. 71 Pg. 204 |
| Pages | 204 |
71 CBJ 204. Oral Argument Before the Second Circuit
Oral argument is not an ordeal to be survived. Rather, oral argument is the capstone of your appeal; it is your final opportunity to persuade those who will shortly decide your appeal that your side deserves to win. Prior to argument, the judges have all read the briefs. They have thought through the issues, discussed the case with their law clerks and, ordinarily, have formed an initial judgment about the appeal. Now, you must solve the problems they see with your appeal, you must cement their favorable impressions of your side and you must even help them win over their colleagues to your position.
Forget that others may have told you that oral argument never matters. It does, and you do not have to take my word for it. Justice Scalia,' a particularly active judge at oral argument, has made the following observations about the importance of oral argument: "I use it to give counsel his or her best shot at meeting my major difficulty with that side of the case. 'Here's what's preventing me from going along with you. If you can show why that's wrong, you have me." (fn1) In a similar vein, justice White has described the function of appellate argument as follows:
All of us on the bench [are] working on the case, trying to decide it ... [The lawyers] think we are there just to learn about the case. Well, we are learning, but we are trying to decide it, too. [I] t is then that all of us ... are working on the case together, having read the briefs and anticipating that [we] will have to vote very soon and attempting to clarify [our] own thinking and perhaps that of [our] colleagues. Consequently, we treat lawyers as a resource rather than as orators who should be heard out according to their own desires. (fn2)
In my experience, the judges in the Second Circuit approach oral argument in the same manner as justices White and Scalia. Thus, judge Miner has written, "No matter how
often we say that oral argument is important, lawyers continue to ignore us. Believe me, it is important! It can win your case." The following is an effort to help you "win your case" through effective appellate argument. I first describe the nuts and bolts, or mechanics, of argument before the Second Circuit and provide some advice for enhancing your oral argument. I have included, as Appendix A, a bibliography of selected articles and treatises on appellate argument.
The Second Circuit's preparation for oral argument begins early in the life of the appeal. Along with the scheduling order, which you will receive early on in the appeal, the Second Circuit provides all counsel of record a "Notice of Appearance/Time Request Form." That form asks for the designation of counsel who will argue the appeal and the amount of time requested for oral argument. The form also designates the week during which argument of the appeal should be ready to be heard and asks for dates on which you will be unavailable for oral argument. This form must be filed by all parties no later than the day the appellant's brief is due.
Unlike many Courts of Appeals, the Second Circuit holds oral I argument in virtually every case before it. The main exceptions are for incarcerated pro se prisoners, applications for mandamus, and criminal appeals in which counsel files a brief and asks to be relieved of oral argument. (fn4) Argument is allowed in all cases unless a panel of three judges decides unanimously that argument is unnecessary on grounds set forth by the federal and local rules. (fn5)
Normally, the Court allots 10 to 15 minutes per side, although in complex cases the Court can assign 20 minutes per side. Amici are generally not permitted to argue. (fn6) The Court's usual practice is to require multiple parties on a side to decide among themselves how to allocate the time.7 However,
sometimes the Court will give a separate allocation of time to governmental party if it is on the same side of an appeal as
private party. The judge scheduled to preside over the panel passes on requests for time. (fn8)
A notice of argument is sent out a couple of weeks before the argument date. Argument is usually scheduled a month or two after the "earliest possible date" listed in the scheduling order. However, you cannot be certain of this and should inform the Clerk by letter if you have a conflict anytime after the earliest possible date for argument. Once the argument date is set, it will not be moved, except in the case of an emergency. Engagement of counsel in other courts (other than the United States Supreme Court) is not considered good cause for postponement of oral argument once it is set. (fn9)
You can, and should, learn the identity of the judges who will hear your appeal, by calling the Clerk after noon on the Thursday of the week preceding argument. However, the exact order of the cases to be heard may not be available until the day before the argument. Under normal circumstances, each judge is scheduled to sit one week out of every four to six weeks. (fn10)
Often, however, a district court judge or "visiting" judge from another circuit will be designated to serve on a panel of the Second Circuit.
Arguments are held in the mornings from 10:00 a.m. until all the cases assigned for that day have been argued, which is generally by approximately 12:00 noon. Arguments are ordinarily held either in Courtroom 1705 of the United States Courthouse at Foley Square, New York, New York or across the street in the United States Court of International Trade, 1 Federal Plaza, New York, New York.
When you arrive, you should check in with the courtroom deputy clerk, who is in Courtroom 1705, beginning at 9:00 a.m. Counsel on all cases to be argued that day are expected to enter their appearances with the courtroom deputy clerk before the judges take the bench and begin hearing ar
guments that day. You will be asked to sign in, and, if you represent the appellant, you will be asked how much time, if any, you wish to allocate for rebuttal. The clerk will keep track of the time, and there is no need to ask the Court to reserve time. When your case is called, come forward to the...
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