CHAPTER 11 Oral Argument

• Jurisdiction: United States

CHAPTER 11

Oral Argument

11-1 Introduction

Oral argument is the court's opportunity to question counsel about the case and positions taken in the brief. Oral argument also has a ritualistic effect of enhancing a feeling that a party has had its day in court before actual judges who have studied the case. Accordingly, oral argument is usually a combination of prepared remarks and answers to questions. Which predominates will vary from court to court and case to case. An oral argument must be much more focused, and much simpler, than the detailed presentation in the written briefs. This is due to the short time for oral argument, the probability of using much of that time by answering questions, and the nature of oral remarks.

11-2 Preliminary Considerations

11-2:1 Deciding Whether to Request Oral Argument and How to Obtain It

Oral argument is granted in only a small percentage of cases. Although the court decides whether to conduct oral argument, it almost never will unless at least one party has requested oral argument.

"A party who has filed a brief and who has timely requested oral argument may argue the case to the court . . ." unless the court decides that oral argument is unnecessary because:

(a) the appeal is frivolous;

(b) the dispositive issue or issues have been authoritatively decided;

(c) the facts and legal arguments are adequately presented in the briefs and record; or

(d) the decisional process would not be significantly aided by oral argument. ¹

An appellant should usually request oral argument. The only exception should be if the client cannot afford it, and financial arrangements are impossible. An appellant's request for oral argument demonstrates to the court that the client is serious about the appeal and willing to invest the resources necessary to reverse the judgment. Because the burden is on the appellant to establish reversible error, oral argument is usually necessary to remove doubts the court may have after reading the briefs.

An appellee also may want to request oral argument. This usually occurs in large, complex cases when oral argument is a virtual certainty. Unless there is a lengthy, well-reasoned opinion from a well-respected trial judge, the appellee could lose credibility by suggesting oral argument is unnecessary. But an appellee should almost never request oral argument when the appellant has waived it. To do otherwise would suggest there are problems in the case. And the court is unlikely to reverse a judgment without setting the case for oral argument on its own initiative.

In many cases, however, the appellee can appropriately state that oral argument is unnecessary. This may be because the issues on appeal involve settled law and challenges to the sufficiency of the evidence, or allegations that well-respected judges abused their discretion in trial-administration issues.

To request oral argument in the court of appeals, state that request on the cover of the brief, usually at the bottom, e.g., "Appellant Requests Oral Argument."² The briefing rule gives either party the option to explain in more detail why oral argument is, or is not, necessary.³ Although this statement is not counted in computing word limits, it should not be abused by including overt arguments on the merits here to circumvent the rules. Usually one paragraph is sufficient, or at most one page. It is unnecessary to request oral argument in the Texas Supreme Court.

11-2:2 Deciding Who Should Argue and Whether to Split the Argument

Appellate judges express a strong preference that the lawyer who is primarily involved in writing the brief argue the case. The reason is based on the purpose of oral argument—to answer the court's questions about the case and the positions taken in the brief. As a result, a "big name" senior partner, or an academic is usually a poor choice unless that lawyer has been heavily involved in the briefing process and has mastered the appellate record. Although trial counsel may know "what really happened," too often that knowledge includes matters not in the appellate record. Similarly, trial counsel often find it difficult to jettison weak positions, to appreciate the effect of the standard of review, and to answer the questions asked by the court rather than telling the court what trial counsel wants to argue. Unlike a passive jury that forms a captive audience for trial counsel's eloquence and persuasion, an appellate court actively, and often continually, interrupts counsel with questions requiring precise answers.

The appellate lawyer most involved in writing the brief will—by necessity—be familiar with the appellate record and the authorities. That appellate lawyer also will have decided which issues to discard for not having been preserved, for not meeting the standard of review, or for not amounting to reversible error. That appellate lawyer also will have considered the limits on any logical extension of the argument, concessions that can be safely made, and the pragmatic consequences of the competing rules. Finally, the appellate lawyer is more likely to be attuned to nuances in other areas of the law that may influence generalist appellate judges.

Dividing an oral argument between two lawyers is almost always a bad idea. The court is not bound to respect counsel's division of issues. So both counsel will have to be prepared on the entire case, which is a needless expense. Moreover, the first counsel may wind up spending most of the time intended for the second. The Rules reflect the preference for one advocate: "Generally, only one counsel should argue for each side. Except on leave of court, no more than two counsel on each side may argue. Only one counsel may argue in rebuttal."⁴

A more logical, though usually ineffective, division is for one lawyer to present the opening argument for the appellant and another lawyer to present the rebuttal. One problem with this approach is that any credibility gained by the opening argument will not carry over to the second advocate. The other problem is more serious: As discussed below, the most effective rebuttal is extremely limited in scope, usually only one or two points made in two to three minutes. It is very hard for a second advocate to be effective in that role.

A difficulty arises, however, when there are multiple parties on one side with separate counsel. The difficulty is exacerbated when the parties also have separate issues. Some courts are willing to allow counsel to divide the case to accommodate the discussion of issues unique to one party. But most courts frown on having two counsel discuss the same issues, even though they represent different parties. In that situation, the parties and their counsel should try to decide on one lawyer to argue the common issues.

11-2:3 Deciding Whether to Move to Extend Time Limits

The history of oral argument demonstrates a continual shortening of the allotted time. Limits of 20 minutes per side are usual for the Texas Supreme Court, and 15 minutes is not uncommon in the courts of appeals. So it is not uncommon for some clients, many trial lawyers, and even a few appellate lawyers to want to expand the time allotted for oral argument.

The desire to expand argument time is usually misplaced. The principal purpose of oral argument today is not to allow counsel to argue orally to the court. Instead, despite its name, the purpose of oral argument is to succinctly answer the court's questions. While the due-process ritual of having one's day in court remains relevant for many justices, they seem to believe 15 minutes is adequate.

So there rarely is a reason to move for additional time. Almost all courts in Texas will allow counsel to exceed the time limit when the court continues to be active in its questioning after the red light comes on. In other words, as long as the court has questions, counsel will likely be allowed to argue. But when the court is finished with its questions, it's time to stop. The relatively short time limits, therefore, encourage both the justices and the advocates to focus and compress their remarks.

If there ever is an occasion to seek additional time, it is when there are multiple parties with discrete issues or cross-appeals involving different issues. In that event, counsel should agree to a joint motion to expand the time allotted for oral argument and file it as soon as practicable after notice of the submission date. The motion should describe specifically why additional time is necessary.

11-3 Preparation for Oral Argument

Preparation is the key to a successful oral argument. Although the outcome in the case will turn on the court's view of the law and facts, the success of oral argument will turn on counsel's preparation.

11-3:1 When to Begin Preparing

Counsel should begin preparing for oral argument as counsel begins working on the first appellate brief. During record review and legal research, ideas will come into focus that could be useful at oral argument. These ideas should be saved in a separate...