Preparing for Oral Argument


The dilemma facing appellate litigators who prepare for oral argument is best summed up in the admonition that presiding justices often give to counsel before calling the calendar: "Counsel, we've read your briefs, so please don't repeat what you've written." Balanced against this

admonition is the prohibition against raising new contentions at oral argument. (Estate of McDaniel (2008) 161 Cal.App.4th 458, 463 ["contentions raised for the first time at oral

argument are disfavored and may be rejected solely on the ground of their untimeliness"].)

An appellate litigator must thread the needle between these conflicting requirements. Even in well-written briefs, pivotal issues can be obscured by sub issues, and the big picture-the logic and fairness of your client's position-can be lost. Oral argument is the opportunity to simplify your arguments for the court, to distinguish between the important and the really important, and to summarize your strongest legal and policy arguments in a five or six-minute presentation. The remainder of your time can be used answering the court's questions.

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