Ethics

Oral Argument in Appellate Court Requires Preparation.

, The Legal Intelligencer

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Sam Stretton
Samuel C. Stretton

Oral argument in appellate court 
requires preparation.

I have my first oral argument before an appellate court in Pennsylvania. What advice would you give?

Oral argument before a trial judge or before an appellate court is a very challenging and rewarding experience for any lawyer. It never ceases to surprise that so many lawyers submit their briefs as opposed to arguing the case in court. Argument provides a chance for lawyers to ensure judges understand the issues and correct any misunderstandings. Further, it provides both the lawyers and the judges an opportunity to meet and get to know each other.

The most basic point for any oral argument is to be concise. Only in the rarest of cases is there any need to discuss detailed facts. The appellate judges have read the facts and know the case.

Second, although a lawyer could raise several issues, a wise lawyer would only argue one or two. Judges are not going to treat the unargued issues as waived. Lawyers should emphasize the issues they think are the strongest.

Further, when arguing, lawyers must remember theirs is not the only case listed. Judges are just like everyone else—they get tired and their attention spans are going to waver at times. The key is to emphasize the highlights of the argument and respond to questions, but not just continue to talk.

In arguing an appellate matter, lawyers must be very careful not to keep repeating themselves. Appellate judges are very bright and understand the issues.

Lawyers arguing before an appellate court have to be absolutely candid. The worst thing lawyers can do is make a serious misstatement, because that will come back to haunt them with appellate judges. At times, lawyers may make a mistake and that is understood, but candor is a critical part of appellate argument.

In arguing, lawyers should not demean their opponents. Many appellate judges know the various lawyers who appear before them. It doesn't help one to demean opposing counsel, particularly if the appellate court respects the person the lawyer is demeaning. Demeaning one's opponent gets one nowhere on the merits of the case. It is a bad practice. The modern practice of attacking one's opponent appears to be a sport, but it is a sport that should stop because there is no way to win the game with that approach.

Respond to judges' questions. A major mistake for a lawyer, when a judge asks a question, is to suggest that he or she will get to the answer later. Look at the judge and answer the question directly. Do not be evasive. During the argument, emphasize the strengths and concede any weaknesses. If lawyers don't know the answer to a question, they shouldn't try to slide by and just state candidly they don't know or will have to check the record. Although in an appellate argument, one wants to be fully prepared and hopefully never has to say one doesn't know when questioned by an appellate judge, it does happen.

When an appellate judge begins talking, the lawyer stops talking. Never, ever, even in the passion of appellate argument, talk over an appellate judge. Further, it is in the lawyer's interest to hear what the judge is saying. Only then will a lawyer get a sense of what is bothering either the judge or the court and at least have an opportunity to respond to that concern.

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