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.

LOADING PDF: If there are any problems, click here to download the file.

Written by:


Horvitz & Levy on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.