Appellate Practice & Procedure

Class #6:

Oral Argument and the Decision

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

Introduction

The case is fully briefed, and you have received notice

that argument will be held.

What do you do now?

This class focuses on:•the nature and basic purposes of oral argument;

•how to prepare for oral argument;

•“dos” and “don’ts” during argument;

•what to do after the argument, including when you get the decision

Nature of Oral Argument

Intelligent dialogue between the justices and advocates•Usually 15 to 30 minutes allowed per side

•Appellant usually gets to carve out some (up to 5 minutes) for rebuttal

A fairly rare occurrence, since most appeals are decided

solely on briefs

An opportunity to assist the court in resolving the case in

a manner favorable to your client

Purposes of Oral Argument

Generally, to answer the justices’ questions•about the record

•about the applicable law

•about the policy implications of deciding the case a certain way

From the parties’ perspective:•Frame the issues in the most favorable way possible

•Appellant: persuade that the judgment satisfied the standards for reversal

•Appellee: identify and emphasize reasons the judgment should be affirmed

How to Prepare for Argument

Review the briefs and record

Study the key cases, particularly ones involving the same

issues and justices

Update your prior research

Outline the presentation

How to Prepare for Argument

Scripting and flowcharts are useful preparation tools

Distill your case down to its barest elements—the key

reasons why you should win

Anticipate the justices’ questions and recognize that they

will interrupt the flow of your presentation

Practice

Oral Argument “Dos”

Visit the courtroom several days beforehand to

become familiar with setup and lighting system

Know the record, even if you weren’t involved at trial

and even if you didn’t prepare the briefs

Know the law on both sides of the case

Oral Argument “Dos” (cont’d)

Approach the podium with only minimum materials

(small binder with outline, flowchart, and key cases)

Use effective communication techniques—maintain

eye contact, proper tone of voice, posture, etc.

Begin with “May it please the Court” and a short

introduction if not already clear

Oral Argument “Dos” (cont’d)

Use the first minute to frame the issues and

summarize where you intend to go

Address the standard of review

If you must discuss the facts, stick to those necessary

to deal with the issues you intend to raise

Answer the justices questions (your main purpose)

Oral Argument “Dos” (cont’d)

Make appropriate concessions

If time permits, summarize and end by restating the

relief sought

When your time is up, sit down

Limit rebuttal to necessary responses to the appellee’s

argument and any further questions from court

Oral Argument “Don’ts”

Don’t read your brief (or a script) to the court

Don’t use visual aids if you can avoid it

This is not the time or place for a jury argument

Don’t interrupt or talk over the justices

Oral Argument “Don’ts” (cont’d)

Don’t go outside the record

Don’t misrepresent the record or the law

Don’t stray from behind the podium

Don’t engage in theatrics when it’s your opponent’s

turn to speak

After the Argument

Report to your client, if not in attendance

Consider whether to file a post-submission brief

When You Get the Decision

Notify your client of the basic outcome immediately

Prepare a letter analyzing the decision and explaining

the client’s options

Confirm the client’s instructions going forward

Questions?

“Stop by” during office hours

Participate in the official study group

Visit the Appellate Discussion Lounge

Next Time . . .

Appellate Practice & Procedure

Class #7:

Rehearing and Higher Court Review

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™