Why Wing It on Oral Argument?

Many attorneys spend countless hours polishing their appellate briefs, ensuring that the argument covers all of the relevant case law and reviewing and revising the documents repeatedly before filing. Then, whether because they are convinced that the outcome of the appeal is predetermined by the briefs, or that they can never sway the court to change its mind in so little time, they risk throwing all of this effort away by simply “winging it” on oral argument.

These perceptions are wrong. Oral argument does affect the judges’ decision-making process. In a 1984 study, two judges separately recorded their observations in a total of 320 cases . They both agreed that oral argument was helpful in 260 of the cases, and that it was necessary in 256 cases. One judge stated that oral argument changed his mind 31% of the time (37% of the time if only the cases where oral argument was “necessary” are counted), and the other stated that he changed his mind 17% of the time (22% of the time if only the cases where oral argument was “necessary” are counted).

What attorney wouldn’t give maximum effort to his or her preparation for a part of the appeal that potentially had a 20-30% effect on the outcome? Yet many lawyers, for whatever reason, disregard the impact of this critical part of the appellate process.

Justices take note of what happens in oral argument, and preparation is considered, no matter how expensive your suit. The modern tendency of abbreviated argument times and prepared, active judges requires “relentless preparation” by the attorney for the oral argument. Here at Counsel Press, our Legal Research Group assist our clients with this task by offering an interactive oral argument preparation package. We provide concise analysis of the strengths and weaknesses of both sides of the appeal, anticipate likely questions, and help you formulate the best answers. We also provide helpful practical information about the particular court handling your appeal. Whether you seek expert assistance, help from a colleague, or handle it on your own, make sure that you properly prepare for oral argument.

1Oral Argument? It May Be Crucial!, Myron H. Bright and Richard S. Arnold, 70 A.B.A.J. 68 (1984).

2See Renee S. Hartz, M.D. v. Administrators of the Tulane Educational Fund; University Healthcare System L.C., 275 Fed. Appx. 281, 2008 U.S. App. LEXIS 8211 (5th Cir. 2008) (panel criticized the attorney’s admitted lack of preparation and flippant attitude toward oral argument, which he dismissed by saying “that’s why I wore a suit today, Your Honor”, chastised him in the opinion, and demanded that he serve a copy of the opinion on his client).

3Thoughts on Presenting an Effective Oral Argument, John G. Roberts, Jr., School Law in Review, p. 7-6 (1997), found at http://www.nsba.org/site/docs/36400/36316.pdf

Tagged: Oral Argument, CP Legal Research Group, Appellate Practice