Appellate Oral Argument: A Purposeful Conversation

• Author: Faith Dianne Pincus
• Profession: Attorney and former Federal Law Clerk
• Pages: 141-145

141

CHAPTER TWELVE

Appellate Oral Argument:

A Purposeful Conversation

Honey Kessler Amado, Law Offices of Honey Kessler Amado;

Robin Meadow, Greines, Martin, Stein & Richland LLP; and

Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP

Justice Stephen Breyer of the United States Supreme Court has described

oral argument as a conversation. Its purpose is to help the court decide

the case. You help the court by having a well-developed argument and by

answering the court’s questions.

Although oral argument is usually optional, given its purpose, it

should not be waived. This is counsel’s only chance to discuss the case

with the justices who will decide it. (This chapter refers to all judges on

the appellate level—state and federal—as justices.) Further, because appel-

late courts rarely provide tentative opinions before oral argument, counsel

rarely knows whether the court has questions about the case or has made a

factual or legal error in its analysis. Waiving oral argument means losing a

critical opportunity to affect the decision. Indeed, several appellate justices

have commented that they are surprised when counsel waive argument; it

suggests that counsel is not interested in engaging with the court.

Preparing for Oral Argument

The key to effective oral argument and confident delivery is preparation.

As one colleague says, “Become master of the record and the law.” Begin

with reviewing your record summaries, and go back into the record itself to

confirm critical factual points. Then read all the briefs. If a brief contains a

factual statement that you do not recall from your review of the record, go

back to the record to be certain the statements are correct or appropriately

complete or contextualized.

Pincus51873_Ch12.indd 141 6/26/18 12:59 PM