Oral Argument: If Not Necessary, Waive It Goodbye

Here's how most diligent lawyers deal with oral argument. (I'll assume you are one of the diligent ones, not one of the "I'm so great on my feet I don't need to prepare" types.)

After you receive the appellate court's notice that oral argument has been scheduled, you spend many hours poring over the briefs and the trial court record, and re-reading every case and statute. Then you draft an elaborate outline that spells out in detail each of the four or five major arguments in your brief.

You show up for oral argument, spiffily attired and armed with your outline, your case summaries, and the entire trial court record (with dozens of tabs on the "important" pages). After "May it please the court," you launch into your outline. Midway through your summary of "Point II," a judge interrupts: "Counsel, what about ... ?" The question is about point IV, or point I, or sometimes no point at all. More questions follow, and your carefully prepared presentation is blown to the wind. You wing it as best you can for the rest of your 20 minutes or so, trying to avoid appearing like a babbling idiot.

A couple of months later, you get the court's opinion. You lost. Reading the opinion, you realize that the judges' questions at oral argument were asked not out of idle curiosity, but were the very bases for the resulting opinion. If only you had better answers to those questions.
I approach oral argument quite differently. I start with the fundamental question: Why am I doing this? How can oral argument help me do what my client is paying me to do: win the appeal? The answer does not come easily.

Try this. Read a set of briefs in a pending appeal. Pretend that you are one of the judges that will decide the case. Then imagine that you are just about to hear oral argument in that case. Is your mind now a blank slate, or have you tentatively already decided the case from reading the briefs?

Most lawyers orally argue as if the judges' minds were blank slates. But they are not. In fact, the judges are well past reading the briefs. They have read them, and they have also discussed the case with people they respect: their law clerks and sometimes their fellow judges. In fact, almost every California appellate court has already drafted the opinion. And that draft opinion is sitting in front of each judge, and many of their questions come straight from the opinion.

It's extremely tough to change a mind that has gone this far. I've asked many appellate judges: "How often does oral argument change your mind?" The usual answer: "Oral argument is important. Sometimes it gets me to change the language of my opinion." I press: "But what about the bottom line - 'affirmed' or 'reversed'? The inevitable reply: "Hardly ever."

Oral argument is expensive. It takes hours of preparation, which your client (or you) must pay for. And it delays issuance of the decision. (Many courts give you a quicker decision if you waive oral argument.)

So why do it? If you can't think of a good reason to orally argue the case, you'll serve your client better by waiving it.

Repeating your brief isn't a good reason. They've read it. It either worked or it didn't. If it didn't, you need to do something different in order to accomplish the near-impossible: turn around strong, made-up minds.

Correcting the court's factual mistakes is a good reason. Occasionally, during oral argument a judge will ask a question that shows a misunderstanding of the record. Correcting it can save your appeal.
But this is rare. The court usually gets the facts straight. If they do, and they are still going to rule against you, what can you do at oral argument to turn around the court?

Given this setting, it's best to assume two things about the judges looking down at you, right from the start: (1) They want to rule against you, and (2) they have reasons for feeling this way. To win, therefore, you need to do two things: (1) persuade them to want to rule for you, and (2) find out their concerns and satisfy them.

A tall order for 30 minutes (or less) of argument. But it's pretty much the only way to use oral argument to do what your client is paying you to do: win the appeal.

So at the outset of one of my oral arguments, my frame of mind is: "I've lost. They've read my briefs, but that didn't work. This is my one chance to turn them around. I can't do it by just repeating what I said in my briefs. So I'd better do something very different."

If I'm wrong and the judges are already leaning in my favor, terrific. Starting with this "probably lost" frame of mind will do no harm. But if I'm right, I still have a small chance to win. So I take it. I don't waste it by simply repeating what's in my brief.

So what do I do?

More on this in a couple of weeks.

by M.A.T. Legal Director Myron Moskovitz