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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. 

CURTIN MARITIME CORP. v. SANTA CATALINA ISLAND CO.

Ninth Circuit, Case No. 18-55338

WILLIAM MARKHAM P.C. OBTAINS APPELLATE REVERSAL

AYA HEALTHCARE SERVICES, INC. V. AMN HEALTHCARE, INC.

Ninth Circuit, Case No. 20-55679

WILLIAM MARKHAM P.C. BRINGS SIGNIFICANT ANTITRUST APPEAL

MR. MARKHAM’S ARTICLES ON ANTITRUST LAW

AN OVERVIEW OF ANTITRUST LAW (By William Markham, © 2000)

“Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law.”
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ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, © 2022)

“Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce.”
Read More…

HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (William Markham, © 2021)

“Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence….,”
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ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)

“Some critics of antitrust law treat it as mere governmental overreach and an unwelcome infringement upon the ordinary operations of our free markets. (….) That criticism betrays a fundamental misunderstanding of the very term ‘free markets,’ which refers to markets that are free of any undue restraint, whether public or private.”
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UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)

“In this article I take up the obscure, problematic doctrine of illegal price discrimination, which was codified by the Robinson-Patman Act during the Great Depression, and which the modern, conservative Supreme Court has severely limited.”
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WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)

“The antitrust laws are supposed to promote and protect competition, or, if you will, competitive processes in distinct ‘lines of commerce’ or ‘relevant markets.’ This alone is their proper purpose.

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

MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, 2011)

“I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial.”
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ANATOMY OF A LAWSUIT (By William Markham, © 2007)

“This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish.”
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AN OVERVIEW OF CONTRACT LAW (By William Markham, 2002)

“Contract law lies at the heart of our system of laws and serves as the foundation of our entire society. This is not an exaggeration. (….) Our society depends upon free exchange in the marketplace at every level.
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References

References
1The 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 designation of the appellate record, as well as the judgment or order challenged on appeal, and it should also include other parts of the trial court’s official record that any party believes the appellate court should consider when ruling on the appeal. An appellate record thus consists only of designated court filings, designated transcripts of court hearings and the trial, additional court filings selected by a party, and specified trial exhibits, jury instructions, and/or voir dire instructions selected for inclusion by a party.