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The Appellate Oral Argument

March 14, 2019 Marwa Elzankaly

The Appellate Court:  An exciting forum of oral advocacy; a check on the process and the decisions of our trial courts; a second chance for parties to make their case; and a place where novel and important legal principles are decided to ensure a balance of fairness and equality in the law.  If you are a trial lawyer and have both tried cases before a trial court and argued appeals before an appellate court, you know that oral argument in the appellate court is an entirely different experience from a bench or jury trial.  Here are some important tips for your first (or second) oral argument:   

Research the Court

Whether you are in state or federal court, once an appeal is completely briefed, your case will eventually get scheduled for oral argument and assigned to a panel of judges to hear the appeal and decide the matter at hand.  It is important to do your research before you go in.  Look up the judges assigned to your case and get to know their background and how they have decided other similar cases.  This will give you some insight as to how they might view the case at hand and where they may have concerns.  Call the Court to confirm how much time each side will have to argue.  Visit the courthouse and sit in on another oral argument so you have a feel for the courtroom and the process. 

Review the Law

Appeals often do not get set for oral argument until many months after they have been briefed.  In the meantime, important principles of law may have changed.  Make sure to update your research.  Check the authority you and the opposing parties have relied on and be sure you are familiar with any changes in the law (good or bad). 

Argue in the Context of the Standard of Review

Appellate courts do not always just get to reanalyze from scratch a lower court’s decision.  How the appellate court reviews the appeal depends on the applicable standard of review for the issue(s) at hand.  A decision on a particular issue can be reviewed do novo, for abuse of discretion, or for clear error

Do not just go in ready to tell the appellate court why the lower court got it wrong (or right).  Understand what the standard of review is, what that means for this issue, and how the appellate court should decide the issue based on the applicable standard. 

Know What the Appellate Court Can Do

If the lower court made the wrong decision, the question then becomes what the appellate court can now do about it.  Does the appellate court have to remand the case back to the lower court for further review?  Can or should it do so with direction to the lower court as to how to engage in that process?  Can the appellate court simply overturn the lower court’s decision and issue its own binding decision, without remanding the matter back to the lower court?  Can the appellate court issue some combination of the above?  Be sure that you have researched what authority the appellate court has to act with respect to the issues raised and are prepared to argue the Court’s level of authority.  

Be Careful What You Ask For

Tread carefully when arguing to the appellate court what you want it to do with the pending appeal and what authority you believe it has.  It may be that if you are appealing a bad decision and the appellate court remands the case back to the trial court for further findings, you run the risk of getting an even worse decision.  It may be that if you ask that the appellate court direct that a different judge hears your matter than the current trial court judge, that the new judge is even more prone to the other side’s position.  Nothing is certain in litigation and there is always some risk involved in everything you do.  However, it is important that you do your research and think these issues through before settling on a final position. 

Start Strong and Focus on the Important Points

When arguing an appeal, generally both sides have about 15 minutes to argue their side.  If you are the appealing party, you will be able to argue your side first, but will have to ask the Court to allow you to reserve some of your time for rebuttal of the opposing side.  Judges will sometimes allow you to go a few extra minutes to get their questions answered but don’t count on it.  To complicate matters, it is likely you will start your argument and a few minutes into it, the judges will start asking you questions.  That means, when preparing your argument, start with a clear, strong statement that sums up the issues on appeal, and prepare a list of important points you want to make.  To the extent they are on point, use the judges’ questions as your opportunity to plug in your important points. 

Take Your Cue From the Judges and Know How to Steer the Conversation

By the time you get to oral argument, your judges may have already discussed your matter and have taken distinct positions as to how they may decide your appeal.  A draft opinion may already have been written.  Sometimes, judges ask questions that are really aimed at making a point to convince the other judges of their point of view.  Pay attention to what is happening around you.  If a judge asks you questions that seem to support your position, go with it and reinforce that judge’s points with evidence from the record and applicable legal authority.  Don’t lose precious time by getting hung up on side issues that are of no consequence.  If the conversation is getting off track into AB&C, and you want to focus the Court on XY&Z, steer the conversation back by respectfully letting the Court know that “regardless of AB&C, the Court does not need to reach this point because of XY&Z,” or “what is really important to your decision here is XY&Z.” 

Know Your Record

It might seem tedious to have to be familiar with volumes and volumes of appellate record, detailing the events that lead up to the trial court’s decision, but it is critical that you know the record, and be armed with citations to the important parts.  An appeal can be won or lost based on a minute factual issue, raised for the first time by the appellate judges, such as the date of a certain event, or whether certain allegations were made in a specific pleading.  You have only one opportunity to clarify those factual issues.  Be prepared to address detailed questions about the facts at issue and don’t be afraid to challenge any factual misconceptions.   

Know Applicable Legal Authority

This is law school 101.  Most of us participated in some sort of moot court or had to do mock oral arguments in law school and were asked detailed questions about applicable cases.  Real life oral argument is no different.  Be prepared to address applicable legal authority, both statutory and case law, regardless of whether it supports or opposes your position. 

Always be Respectful!

As with anything you do, always be professional and be respectful.  This includes with everyone you interact with…the security people in the front of the building, the bailiff, the courtroom clerk, the research attorneys, and of course, the judges and your opposing counsel.  Greet your opposing counsel when you come in and before you leave.  Be prepared to be asked tough questions or to be met with skepticism as to your position.  Never allow that to alter your demeanor or cause you to become insecure, defensive or disrespectful.  Answer the judges’ questions with respect and with confidence of your position.  Keep in mind that much of what you do is not just based on the facts and the law, but also your credibility with the Court.

Don’t Sweat It

Finally, don’t be too hard on yourself.  No one is perfect.  If you make a mistake, don’t let that throw you off and ruin the rest of your oral argument.  Own up to it and take necessary steps to remedy the situation.  If you forget to ask for time for rebuttal at the beginning of your argument, ask the court if it will excuse the error and give you a few more minutes.  A little healthy nervousness at the beginning only means that you are taking the matter seriously and will motivate you to prepare.  But don’t get yourself so worked up with fear, that you forget to enjoy the experience.  We are lucky to have a judicial system in which our judges respect the lawyers who appear before them as officers of the Court and who genuinely try to enforce the rule of law.  Don’t forget that having an opportunity to take part in that system is an honor and a privilege.

 

Watch Marwa Elzankaly argue before a panel of 11 Ninth Circuit judges.  The oral argument may be viewed here.   (Begins at 10:55)