ORAL ARGUMENT BEFORE AN APPELLATE PANEL

In appellate litigation, the court of appeal conducts a hearing called “oral argument” after the parties have submitted all required appellate briefs and the appellate record.[1]The appellate record, in turn, is the part of the official record of the case below that must or can be shown to the appellate court. It must include the appellant’s notice of appeal and … Continue readingAfter the court of appeals has received these items in accordance with its own briefing calendar, it gives notice of the date and time set for oral argument, which is then conducted by the panel of judges charged with deciding the appeal (the “reviewing judges” or “appellate panel”).

Oral argument is typically the last proceeding in which the parties participate before the reviewing judges render their decision, which in turn usually constitutes the final adjudication of the entire case or all issues raised on appeal if the case is remanded to the court below for further proceedings. On rare occasion, the reviewing judges might order the parties to submit supplemental briefing on a specific point during or after oral argument, but usually oral argument is each party’s last opportunity to address the reviewing judges before they decide the appeal.

To someone unfamiliar with them, oral arguments in appellate court might often seem meandering, inconclusive, and the very reverse of stirring, impassioned advocacy. But they are essential to appellate proceedings and can now be performed remotely in most courts of appeal.

An oral argument is a very short session, which usually lasts exactly 20 or 30 minutes, but is sometimes even shorter. Longer sessions are occasionally scheduled in cases of the highest importance. Typically, speaking time is allotted in equal measure to each “side” (a party or group of parties with the same interest in the case). In most instances, the appellant and appellee each receive either 10 or 15 minutes to speak. To enforce these time limits, the court of appeal prominently displays a digital timer that counts down the available time by the second, then flashes red when time runs out. There is very little time to do much at all at oral argument.

The parties’ lead attorneys must appear, but can now do so remotely, and sometimes an intervenor also appears, as did the Antitrust Division of the U.S. Department of Justice in one of Mr. Markham’s recent appeals. The parties themselves can attend and observe, but cannot be heard and should not call any attention to themselves.

When oral argument is convened, the reviewing judges have already read the parties’ briefs and examined the appellate record, and their judicial clerks have likely studied these matters closely and also conducted their own independent review of the controlling law. Most appellate attorneys therefore make no attempt to state their full positions to the reviewing judges. There is insufficient time to do so, and the effort would likely have little persuasive effect: by then the reviewing judges are already familiar with each side’s arguments, and they can always refer to the parties’ briefs if they wish to brush up on any particular point raised in them.

Oral argument serves a different purpose. It permits the reviewing judges to put questions to the attorneys, obliging them on the spot to defend vulnerable points, acknowledge omissions or failings in their arguments, and address particular points that perhaps were insufficiently explained in the briefs. By this question-and-answer session, the reviewing judges sometimes seek further information and often test the sufficiency of the arguments presented in the briefs.

At oral argument, an appellant attorney’s core role is to listen carefully to each judge’s questions and to answer them directly. For attorneys, the core work of an appeal is done beforehand and lies in assembling the appellate record, composing one or more appellate briefs, and including in each brief exact, accurate citations to the appellate record or controlling law. 

MR. MARKHAM’S ARTICLES ON ANTITRUST LAW

MR. MARKHAM’S ARTICLES ON TRIAL PROCEDURE AND CONTRACT LAW