Do You Argue?
As appellate practitioners, our advocacy is primarily in written form. Good appellate advocates must possess strong research, writing, and analytical skills. Does that mean that our job as appellate advocates is complete with the filing of the final brief? Well, that depends upon who you ask. Some appellate practitioners rarely request oral argument at the Court of Appeal. While others feel compelled to request argument in every case. So - who is right?
In my opinion, there is no hard and fast rule. The decision on whether or not counsel should request oral argument should be made on a case-by-case basis. Here are the factors I use in my practice when deciding whether or not to request oral argument.
- Strength of The Issues: The relative strength or weakness of the arguments raised in the brief. Sometimes, an argument will be presented in the state appellate courts, to preserve the issue for consideration in the federal courts. If I am merely presenting an argument to assist my client in exhausting his state remedies, then I will not request oral argument. On the flip-side, if the issue briefed is particularly strong, then oral argument will likely be requested.
- Complexity of the Issues: The more complex the issues are, the more likely I am to request oral argument. A case with complex issues is the ideal case to request oral argument. Remember, the purpose of oral argument is to clarify your argument, engage in a dissuasion with the court, and answer their questions.
- Novelty of the Argument: If you are presenting a relatively novel argument, or perhaps you are approaching a often-argued issue in a unique way, oral argument can help you further guide the court along the path you laid out in your briefing.
- Unique Facts: Does your case have unique facts? Perhaps a few small facts are pivotal for your case, oral argument will help to ensure that the court did not miss those unique, yet pivotal, facts when they reviewed the briefing.
- Advocate for a change in the treatment of the issue. In California, we are fortunate enough to have unpublished opinions available to us for free on the Court's web site. This allows us to see how our court has ruled on similar issues. From those unpublished (and published) opinions, you can see where the Court may have questions or concerns with the issue raised. With this information in hand, oral argument provides you the opportunity to advocate to the Court that they should depart from their current trend of rulings.
- Client's Wishes: What does your client want? In some cases, you may have clients that are insistent, or expect, that you will orally argue their case. I give my client's wishes great weight in my decision of whether or not to present oral argument. This is, after all, their case.
In my practice, when I am in doubt about whether or not argument will help my client's case, I argue. Oral argument is an exhilarating opportunity to engage in a discussion with the Court and one final opportunity to attempt to persuade them to view my arguments favorably.